Wright v. Georgia Transcript of Record

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October 1, 1962

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    TRANSCRIPT OF RECORD

Supreme Court of the United States
OCTOBER TERM, 1962

No. 68

NATHANIEL WRIGHT, ET AL., PETITIONERS,

vs.

GEORGIA

ON W B IT  OF CERTIORARI TO T H E  SU PRE M E  COURT OF T H E  
STATE OF GEORGIA

PETITION FOR CERTIORARI FILED FERRUARY 17, 1962 

CERTIORARI GRANTED JUNE 25, 1962



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1962

N o. 68

NATHANIEL WEIGHT, ET AL., PETITIONERS,
vs.

GEORGIA

ON W R IT  OR CERTIORARI TO T H E  SU PRE M E  COURT OE TH E  
STATE OP GEORGIA

I N D E X

Proceedings in the Supreme Court of the State of
Georgia ______________________________________

Bill of exceptions _______________________________
Judge’s certificate to bill of exceptions __________
Record from the City Court of Savannah, Georgia

Accusation and endorsements thereon _________
Pleas of not guilty ____________________________
Verdict of the jury ___________________________
Sentence as to Charlie L. Smart, Roscoe White, 

James W. Thomas, Benjamin Carter and Jud-
son Ford __________________________________

Sentence as to Nathaniel Wright ______________
General demurrers and order overruling same __
Rulings of the Court __________________________
Motion for acquittal and denial thereof _______
Motion of Nathaniel Wright for new trial, order

to show cause and denial of motion _________
Motion of Charles L. Smart for new trial, order

to show cause and denial of m otion_________
Motion of Roscoe White for new trial, order to 

show cause and denial of motion ___________

O riginal P rin t

1 1
1 1
9 7

15 8
15 8
17 10
18 10

18 10
18 11
19 11
22 14
22 14

26 17

30 20

34 24

Record Press, Printers, New Y ork, N. Y., A ugust, 1962



11 INDEX

O riginal P rin t

Record from the City Court of Savannah, Georgia 
— Continued
Motion of James W. Thomas for new trial, order

to show cause and denial of motion _________  38 27
Motion of Benjamin Carter for new trial, order

to show cause and denial of m otion_________  42 31
Motion of Judson Ford for new trial, order to

show cause and denial of motion ___________  46 34
Brief of the evidence__________________________  50 38

Testimony of G. H. Thompson—
direct _________________  50 38
cross __________________  52 40
redirect _______________  53 42
recross ________________  53 42
redirect _______________ 54 42

Carl Hager—
direct _________________  54 42
cross __________________  55 43
redirect _______________  57 46
recross ________________  58 47

C. C. Dickerson—
direct _________________  59 48
cross __________________  59 48

G. W. Hillis—
direct _________________  60 49
cross __________________  61 50
redirect _______________ 61 50
recross ________________  61 50

Order of consolidation _______________________  63 51
Opinion, Quillian, J. ____________________________  67 52
Judgment ______________________________________  75 58
Motion for rehearing____________________________  76 58
Order denying motion for rehearing _____________ 80 60
Clerk’s certificate (omitted in printing) _________  81 60
Order allowing certiorari ________________________ 82 60
Charge of the court by Judge Alexander _______  83 61



1

[fol. 1]
IN THE SUPREME COURT OF GEORGIA

G eorgia ) To th e  P resent T erm  of th e  S upreme
C ourt of G eorgia

I n E rror F rom th e  City  
C oErRT of S ava n n a h , 

G eorgia.

In which the case is entitled. 
S tate of G eorgia

—against—

N ath an iel  W rig h t , 
C harles L. S m art , 

R o sco  W h it e ,
J ames W. T h om as , 

B e n ja m in  Carter, and 
J udson F ord

B ill  of E xceptions

N ow Comes, Nathaniel Wright, Charles L. Smart, Rosco 
White, James W. Thomas, Benjamin Carter and Judson 
Ford, as Plaintiffs-in-error, and file this their Bill of Ex­
ceptions. in which the State of Georgia is the Defendant- 
in-error.

Be It Remembered that, Plaintiffs-in-error were brought 
up for trial in the City of Savannah, Georgia, Honorable 
Columbus E. Alexander, Judge, Presiding, on the 18th 
day of May, 1961, said Plaintiffs-in-error being charged 
with violation of Section 26-5301 of the Code of Georgia.

Be It Further Remembered that, the trial of said case 
proceeded and a Jury was stricken. However, before ar­
raignment and before pleading to the accusation therein, 
Plaintiffs-in-error filed a General Demurrer to said ac­
cusation upon the grounds that the Statute upon which it 
was based, to-wit: Section 26-5301 of the Code of Georgia, 
was unconstitutional. The General Demurrer was over­
ruled by Honorable Columbus E. Alexander, Judge, presid­

Ch a th a m  C ounty  )

N ath an iel  W righ t , 
C harles L. S m art , 

Rosco W h it e , 
J am es 'W . T h om as , 

B e n ja m in  Carter and 
J udson F ord,

Plaintiff s-In-Error

—against—

S tate of G eorgia 

Defendant-Iii-Error



2

ing. Evidence was then introduced by the State at the 
[fol. 2] close of which Counsel for the Defendants made 
a Motion to Acquit. After argument of Counsel in the 
absence of the Jury, the Motion to Acquit was overruled 
by Honorable Columbus E. Alexander, Judge, Presiding. 
The Jury was recalled and after argument of Counsel and 
the charge of the Court in said ease, the Jury returned a 
verdict of guilty, whereupon The Honorable Columbus E. 
Alexander, Judge of said Court, sentenced each Defendant 
to pay a fine of $100.00 or serve five months under the 
jurisdiction of the State Board of Corrections, with the 
exception of Defendant, Nathaniel Wright who was sen­
tenced to pay a fine of $125.00 or serve six months under 
the jurisdiction of the State Board of Corrections.

Be It Further Remembered that, within the time pre­
scribed by Law, and on the 23rd day of May, 1961, Defen­
dants duly filed their Motions for New Trial, which case 
was regularly set down for hearing on the 23rd of June, 
1961. The Honorable Columbus E. Alexander, Judge, 
presiding, continued the Hearing on said Motion until the 
21st day of July, 1961, at which time said Motion for New 
Trial and Brief of Evidence was submitted to the Court 
without argument of Counsel. Said Motions for New Trial 
were considered by the Court and on the 24th day of July, 
1961, the Honorable Columbus E. Alexander, Judge of 
said Court, entered an Order overruling said Motions for 
New Trial on each and every ground. On the 17th day of 
August, 1961, the Honorable Columbus E. Alexander, Judge 
of said Court, issued an Order permitting the cases of 
Plaintiffs-in-error to be consolidated as said cases were 
predicated upon identical circumstances and facts and in­
volved the same defensive pleas and the same questions 
of Law.

Plaintiffs-in-error make the following assignments of Er­
ror :
[fol. 3] 1. Plaintiffs-in-error in due time filed the fol­
lowing General Demurrer to the accusations:



3

“ GENERAL DEMURRERS
NOW COMES the Defendants in the above named and 

stated case and before arraignment and before pleading to 
the accusation therein, and demur thereto, and for grounds 
of demurrer, say:

1. These Defendants demur to said accusation upon the 
ground that the Statute upon which said accusation is based 
and under which Defendants, all being Negroes, were ar­
rested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, “ ANY TWO OR MORE PERSONS WHO 
SHALL ASSEMBLE FOR THE PURPOSE OF DIS­
TURBING THE PUBLIC PEACE OR COMMITTING 
ANY UNLAWFUL ACT, AND SHALL NOT DISPERSE 
ON BEING COMMANDED TO DO SO BY A JUDGE, 
JUSTICE, SHERIFF, CONSTABLE, CORONER OR 
OTHER PEACE OFFICER, SHALL BE GUILTY OF 
A MISDEMEANOR” , is so vague that Defendants are 
not put on notice as to what criminal act they have al­
legedly committed, rendering it impossible to answer the 
charge or make a legal defense, thus denying to Defendants 
due process of Law secured to them by the Fourteenth 
Amendment to the United States Constitution.

2. These Defendants demur to said accusation upon the 
ground that the Statute upon which said accusation is based 
and under which Defendants, all being Negroes, were ar­
rested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, as set out in “ Paragraph 1” above, is uncon­
stitutional in that said Statute is unconscionably vague 
in that nowhere in said Statute does there appear a 
definition of disturbing the public peace or committing any 
unlawful act. The absence of definition of these terms in 
sufficient specificity denies due process of Law guaranteed 
[fol. 4] by the Fourteenth Amendment to the United States 
Constitution and the Constitution of the State of Georgia.

3. These Defendants demur to said accusation upon the 
ground that the Statute upon which said accusation is based 
and under which Defendants, all being Negroes, were ar­
rested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, as set out in “ Paragraph 1” above, is uncon­



4

stitutional as applied to these Defendants to enforce racial 
discrimination with respect to municipally owned recrea­
tional facilities, in that any Statute so used is unconstitu­
tional as applied, because the Fourteenth Amendment to 
the United States Constitution requires that no State shall 
make any discrimination based on race with respect to 
governmentally owned facilities.

4. These Defendants demur to said accusation upon the 
ground that the arrest of said Defendants under Section 
26-5301 of the Code of Georgia, as set out in “ Paragraph 
1” above, was in fact pursuant to the policy, custom and 
usage of the State of Georgia, which compels segregation 
of races in municipally owned places of public recreation 
contrary to the equal protection and due process clauses 
of the Fourteenth Amendment to the United States Consti­
tution.

5. These Defendants demur to said accusation on the 
ground that the Statute upon which said accusation is based 
and under which Defendants, all being Negroes, were ar­
rested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, as set out in “Paragraph 1” above, vests in 
said Judge, Justice, Sheriff, Constable, Coroner or any 
other peace officer, the untramelled and arbitrary authority 
to predetermine the commission or the intent to commit an 
offense under said Statute. Defendants under said Statute 
are not apprized of what acts or act they are forbidden to 
[fol. 5] commit, said determination being left solely to the 
discretion of the said peace officer. Said Statute is there­
fore so vague, capricious, arbitrary and unreasonable as 
to violate the due process clause of the Fourteenth Amend­
ment to the United States Constitution.

These Defendants pray that each and all of the fore­
going grounds of demurrer be examined into by the Court 
and that said accusation be quashed upon each and all of 
said grounds.”

The Honorable Columbus E. Alexander, Judge, presiding, 
overruled said General Demurrers upon each and every 
ground, to which ruling Plaintiffs-in-error excepted, now 
except and assign the same as error upon the ground that 
it was contrary to Law.



5

2. At the close of the State’s evidence, Plaintiffs-in-error 
made the following Motion to Dismiss:

Motion
Mr. Gadsden: I would like to make a Motion for Ac­

quittal, Your Honor, based on this Georgia Statute, Sec­
tion 26-5301; a Statute which prohibits “ Unlawful Assem­
bly” for the purpose of disturbing the public peace. The 
State has not established the fact that they assembled 
there for the purpose of disturbing the public peace or for 
committing any unlawful act; the only evidence in this 
case is that they were there for the purpose of playing 
basketball, the State’s own witness show that, and it is 
not within the purview of this Statute to have a conviction 
when it doesn’t meet all of the terms and elements of the 
Law. There is no evidence here before this Court and 
Jury that the Defendants went, there for the purpose of 
disturbing the public peace other than circumstantial evi­
dence, and our position is that when circumstantial evi- 
[fol. 6] dence is relied upon to convict a person it must 
have no other reasonable explanation than the one upon 
which the State is relying. Now if the State is basing its 
case upon the fact that these Defendants went there for 
the purpose of disturbing the public peace the only evi­
dence it has to sustain that is the fact that they had on 
ordinary clothing, and as far as I can determine from the 
evidence here today that is all they have to show an at­
tempt to disturb the public peace, and there is no other 
offense involved whatsoever. The only evidence before 
this Court today is that these Defendants went there to 
play basketball and that they played basketball until 
stopped by the police officers, and that is the reason why 
we are asking this Court to direct a verdict for acquittal 
in this case; the State has failed to carry the burden in 
that respect.

It is a question of “ Intent”  and, certainly, there is no 
evidence as to their intent. All of the evidence they have 
is circumstantial, and I think that the Law is settled on 
the fact that where there is circumstantial evidence, and 
when there are two different conclusions, this, certainly, 
cannot be used to sustain a conviction and, therefore, we



6

respectfully ask this Court to direct a verdict of acquittal 
in this case.

Judge: Motion, for directed verdict overruled.
The Honorable Columbus E. Alexander, Judge, presiding, 

overruled said Motion to Dismiss, to which ruling Plain­
tiffs-in-error excepted, now except and assign the same as 
error upon the ground that it was contrary to Law, and 
that the same should have been granted because the evi­
dence revealed that no crime had been committed by the 
Plaintiff s-in-error.

3. Plaintiffs-in-error, as hereinabove set out, filed Mo­
tions of New Trial on the 23rd day of May, 1961, and on the 
[fol. 7] 24th day of July, 1961, the Honorable Columbus E. 
Alexander, Judge of said Court, overruled said Motions on 
each and every ground, therein stated, to which ruling 
Plaintiffs-in-error excepted, now except and assign the same 
as error upon the ground that it was contrary to Law.

4. The Honorable Columbus E. Alexander, Judge, pre­
siding, at the trial of said case, sentenced each Defendant 
to pay a fine of $100.00 or serve five months under the 
jurisdiction of the State Board of Corrections with the 
exception of Defendant, Nathaniel Wright who was sen­
tenced to pay a fine of $125.00 or serve six months under 
the jurisdiction of the State Board of Corrections, to which 
judgment Plaintiffs-in-error excepted, now except and as­
sign the same as error upon the ground that it was con­
trary to Law.

Plaintiffs-in-error specify, as being material to a clear 
understanding of the errors complained of, the following 
portions of the record:

1. Accusation Number 21074 together with all entries 
thereon together with the pleas of Not Guilty.

2. The verdict of the Jury together with the judgment 
and sentence of the Court signed by the Honorable Colum­
bus E. Alexander, Judge, then presiding, dated May 23, 
1961.

3. General Demurrers filed by Plaintiffs-in-error before 
arraignment and before pleading to the accusations, to­
gether with the rulings of the Court thereon.



7

4. The Motion to Dismiss submitted at the close of the 
State’s evidence and the ruling of Court thereon, as set 
out in Ridings of the Court approved by Honorable Colum­
bus E. Alexander, Judge, then presiding.

5. Motions for New Trial filed by Plaintiffs-in-error, 
[fol. 8] Order continuing said Motion, dated and filed on 
the 21st day of June, 1961. An order overruling said Mo­
tions for New Trial, dated and filed on the 24th day of 
July, 1961, and signed by Honorable Columbus E. Alexan­
der, Judge of the City Court of Savannah, Georgia.

6. The Brief of Evidence and Approval of said Brief 
of Evidence by Honorable Columbus E. Alexander, Judge, 
then presiding, filed on the 24th day of July, 1961.

7. Order permitting consolidation of said cases, signed 
by Honorable Columbus E. Alexander, Judge, presiding, 
dated and filed on the 17th day of August, 1961.

And Now Comes the Plaintiff s-in-error, within the time 
provided by Law and, assigning error on all the rulings 
complained of as being contrary to Law, tender this their 
Bill of Exceptions and pray that the same be certified as 
true and transmitted to the Supreme Court of the State 
of Georgia, in order that the alleged errors be considered 
and corrected, all as provided by Law.

The Supreme Court of Georgia, and not the Court of 
Appeals, has jurisdiction of this Bill of Exceptions, for the 
reason that the same involves the constitutionality of a 
statute of the State of Georgia.

Plaintiffs-in-error most respectfully submit their Bill of 
Exceptions.

/ s /  E. H. Gadsden, B. Clarence M ayfield , Attorneys 
for Plaintiffs-In-Error, 458y2 West Broad Street, 
Savannah, Georgia.

[fol. 9]
J udge ’s Certificate to B ill  of1 E xceptions

I do certify that the foregoing Bill of Exceptions is true 
and contains all of the evidence and specifies all of the 
record material to clear understanding of the errors com­
plained of, and The Clerk of the City Court of Savannah,



8

Chatham County, Georgia, is hereby directed to make out 
a complete copy of such portions of the record as are 
in this Bill of Exceptions specified, and certify them as 
such, and cause them to be transmitted to the Present Term 
of the Supreme Court of Georgia, in order that the errors 
alleged to have been committed may be considered and 
corrected.

This 18th day of August, 1961.
/ s /  C olumbxjs E. A lexander , Judge, City Court of 

Savannah, Chatham County, Georgia.

[fol. 15]
I n th e  C ity  C ourt of S ava n n a h , Georgia

A ccusation  and E ndorsements T hereon

State of Georgia )
County of Chatham )
City of Savannah )

And now on this 28th day of April in the year of our 
Lord one thousand nine hundred and sixty-one comes An­
drew J. Ryan, Jr., Solicitor General of the Eastern Judicial 
Circuit of Georgia, who prosecutes for the State of Georgia, 
in the City Court of Savannah, and by accusation made 
on oath, and in accordance with the statutes in such cases 
made and provided, in the name and behalf of the Citizens 
of Georgia, charges and accuses Benjamin Carter, James 
W. Thomas, (Gavos M. King), Roseoe White, Charlie L. 
Smart and Judson Ford and Nathaniel Wright of the 
County of Chatham and State aforesaid with the offense of 
a misdemeanor: for that the said Defendants in the County 
of Chatham and State of Georgia aforesaid, on the 23rd 
day of January in the year of our Lord one thousand nine 
hundred and sixty-one. In that the said Defendants did as­
semble at Daffin Park for the purpose of disturbing the pub­
lic peace and refused to disburse (sic) on being commanded 
to do so by Sheriff, Constable, and Peace Officer, to wit: 
W. H. Thompson and G. W. Hillis, contrary to the laws of 
said State, the good order, peace and dignity thereof.

/ s /  A ndrew  J. R y a n , J r ., Solicitor General of the 
Eastern Judicial Circuit of Georgia.



9

No. 21,074
I n th e  C ity  C ourt op S avann ah  

T erm— M ay , 1961.

V iolation  of G eorgia L aws 26-5301 C ode op 1933 
a  M isdemeanor

[fol. 16]

S tate

vs

N ath an iel  W right 
C harlie  L. S m art  
(G aw » M. -K-i&g) 
J ames W . T homas 
B e n ja m in  Carter 

J udson F ord 
R oscoe W h it e

ACCUSATION FOUND 
This 28th day of April, 1961.

Filed in office this 28th day of April, 1961. 
J esse W. M oore

Dept. Clerk City Court of Savannah
By A ndrew  J. R y a n , Jr,

Solicitor General E. J. C. of Ga.
G. W. H illis 
Prosecutor

Witnesses for the State
G. W. H illis 

W. H . T piompson 
C. C. D ickerson  

Carl H ager



10

I n th e  C ity  Court of S avann ah

P leas op N ot G u ilty— May 18,1961
And now on this 18th day of May, 1961, in Open Court 

comes the said Nathaniel Wright, Charlie L. Smart, Roscoe 
White, James W. Thomas, Benjamin Carter, Judson Ford, 
and waives indictment or presentment by a Grand Jury, 
and arraignment and trial by a Petit Jury, and for plea 
in this their behalf says they are Not Guilty, and puts 
themselves upon the Court.

B. Clarence Mayfield, E. H. Gadsden, Attorneys for 
Defendants.

The State says he is guilty and will so prove.
Andrew J. Ryan, Jr., Solicitor General E. J. C. of 

Georgia.

[fol. 17]

[fol. 18]
I n th e  C it y  C ourt of S avann ah

V erdict of th e  J ury—May 18, 1961 
May 18,1961.

We, the Jury, find the Defendants guilty.
L. L . Black, Foreman.

I n th e  C it y  C ourt of S avann ah

S entence  of th e  Court as to C harlie  L. S m art , R oscoe 
W h it e , J ames W . T h om as , B e n ja m in  Carter, J udson 
F ord— May 18,1961 I

I find the defendants guilty, whereupon, it is considered, 
ordered and adjudged that the said defendants do pay a 
fine of $100.00 Each, but if the said defendants fail to pay 
the said fine, it is ordered that in lieu thereof they serve



11

Five Months Each under the jurisdiction of the State 
Board of Corrections.

This May 18th, 1961.
/ s /  C olum bus E. A lexander, Judge, City Court of 

Savannah.

I n th e  C it y  Court of S avann ah

S entence  of th e  C ourt as to N ath an iel  W right  
— May 18,1961

I find the defendant Nathaniel Wright, guilty, where­
upon, it is considered, ordered and adjudged that the said 
defendant do pay a fine of $125.00, hut if the said defendant 
fails to pay the said fine, it is ordered that in lieu thereof 
he serve Six Months, under the jurisdiction of the State 
Board of Corrections.

This May 18th, 1961.
/ s /  Colum bus E. A lexander, Judge, City Court of 

Savannah.

[fol. 19]
I n the  C ity  C ourt of S avannah  

[Title omitted]

G eneral D emurrers and Order Overruling  S ame 
—May 18,1961

Now Comes the Defendants in the above named and 
stated case and before arraignment and before pleading 
to the accusation therein, and demur thereto, and for 
grounds of demurrer, say:

1. These Defendants demur to said accusation upon the 
ground that the Statute upon which said accusation is 
based and under which Defendants, all being Negroes, 
were arrested and charged, to-wit: Section 26-5301 of the 
Code of Georgia, “ ANY TWO OR MORE PERSONS 
WHO SHALL ASSEMBLE FOR THE PURPOSE OF



12

DISTURBING THE PUBLIC PEACE OR COMMITTING 
ANY UNLAWFUL ACT, AND SHALL NOT DISPERSE 
ON BEING COMMANDED TO DO SO BY A JUDGE, 
JUSTICE, SHERIFF, CONSTABLE, CORONER, OR 
OTHER PEACE OFFICERS, SHALL BE GUILTY OF 
A MISDEMEANOR” , is so vague that Defendants are not 
put on notice as to what criminal act they have allegedly 
committed, rendering it impossible to answer the charge 
or make a legal defense, thus denying to Defendants due 
process of law secured to them by the Fourteenth Amend­
ment to the United States Constitution.

2. These Defendants demur to said accusation upon the 
ground that the . Statute upon which said accusation is 
based and under which Defendants, all being negroes, were 
arrested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, as set out in “ Paragraph 1” above, is uncon­
stitutional in that said Statute is unconscionably vague in 
that nowhere in said Statute does there appear a definition 
of disturbing the public peace or committing any unlawful 
[fol. 20] act. The absence of definition of these terms in 
sufficient specificity denies due process of law guaranteed 
by the Fourteenth Amendment to the United States Con­
stitution and the Constitution of the State of Georgia.

3. These Defendants demur to said accusation upon the 
ground that the Statute upon which said accusation is based 
and under which Defendants, all being Negroes, were ar­
rested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, as set out in “ Paragraph 1” above, is uncon­
stitutional as applied to these Defendants to enforce racial 
discrimination with respect to municipally owned recrea­
tional facilities, in that any Statute so used is unconstitu­
tional as applied, because the Fourteenth Amendment to 
the United States Constitution requires that no State shall 
make any discrimination based on race with respect to 
governmentally owned facilities.

4. These Defendants demur to said accusation upon the 
ground that the arrest of said Defendants under Section 
26-5301 of the Code of Georgia, as set out in “ Paragraph 
1”  above, was in fact pursuant to the policy, custom and 
usage of the State of Georgia, which compels segregation



13

of races in municipally owned places of public recreation 
contrary to the equal protection and due process clauses 
of the Fourteenth Amendment to the United States Con­
stitution.

5. These Defendants demur to said accusation on the 
ground that the Statute upon which said accusation is based 
and under which defendants, all being Negroes, were ar­
rested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, as set out in “ Paragraph 1” above, vests in said 
Judge, Justice, Sheriff, Constable, Coroner, or other peace 
officers, the untramelled and arbitrary authority to pre­
determine the commission or the intent to commit an of­
fense under said Statute. Defendants under said Statute 
is not apprized of what acts or act they are forbidden to 
commit, said determination being left solely to the dis­
cretion of the said peace officers. Said Statute is there­
fore so vague, capricious, arbitrary and unreasonable as 
to violate the due process clause of the Fourteenth Amend- 
[fol. 21] ment to the United States Constitution.

These Defendants pray that each and all of the foregoing 
grounds of demurrer be examined into by the Court and 
that said accusation be quashed upon each and all of said 
grounds.

..............................-............... , Attorney for Defendants.
General Demurrer filed in Clerk’s Office this May 18, 1961.

Jeff F. Dickey, Clerk, City Court of Savannah.

ORDER OVERRULING DEMURRERS 
May 18, 1961.

The within demurrer is overruled on each and every 
ground.

/ s /  C olum bus E. A lexander, Judge, City Court of 
Savannah.



14

I n th e  C ity  C ourt op S avann ah  

R ulings op th e  C ourt

See Brief of Evidence, Page 6—beginning of cross ex­
amination of Mr. Hager by Mr. Mayfield.

Mr. Garfunkel: I object to that, Your Honor, there has 
been no evidence that there was a request for an arrest. 
There was a report made that there were negroes playing 
there, but nobody requested the police to make an arrest, 
the police just went down there and made an arrest after­
wards.

Judge: I think that is the case.
Mr. Mayfield: I would like to show to the Court and 

Jury that the policy, pursuant to Mr. Hager’s examination 
here, was that they would have been permitted to remain 
there had the police officers not arrested them.

Judge: Ask questions following the evidence in the case.

[fol. 22]

I n  th e  C it y  Court op S avann ah

M otion for A cquittal and D enial  T hereof

Mr. Gadsden: I would like to make a Motion for ac­
quittal, Your Honor, based on this Georgia Statute Section 
26-5301; a Statute which prohibits “ Unlawful Assembly” 
for the purpose of disturbing the public peace. The State 
has not established the fact that they assembled there for 
the purpose of disturbing the public peace or for com­
mitting any unlawful act; the only evidence in this case 
is that they were there for the purpose of playing basket­
ball, the State’s own witnesses show that, and it is not 
within the preview (sic) of this Statute to have a conviction 
when it doesn’t meet all of the terms and elements of the 
law. There is no evidence here before this Court and Jury 
that the defendants went there for the purpose of disturb­
ing the public peace other than circumstantial evidence, 
and our position is that when circumstantial evidence is 
relied upon to convict a person it must have no other 
reasonable explanation than the one upon which the State 
is relying. Now if the State is basing its case upon the



15

fact that these defendants went there for the purpose of 
disturbing the public peace the only evidence it had to 
sustain that is the fact that they had on ordinary clothes, 
and the State’s own witnesses have testified to the fact that 
they know that people play basketball in their ordinary 
[fol, 23] clothing, and as far as I can determine from the 
evidence here today that is all they have to show an at­
tempt to disturb the public peace, and there is no other 
offense involved whatsoever. The only evidence before this 
Court today is that these defendants went there to play 
basketball and that they played basketball until stopped 
by the police officers, and that is the reason why we are 
asking this Court to direct a verdict for acquittal in this 
case; the State has failed to carry the burden in that re­
spect.

It is a question of ‘intent’ and, certainly, there is no 
evidence as to their intent. All of the evidence they have 
is circumstantial and I think that the law is settled on the 
fact that where there is circumstantial evidence, and when 
there are two different conclusions, this, certainly, cannot 
be used to sustain a conviction and, therefore, we respect­
fully ask this Court to direct a verdict of acquittal in this 
case.

Mr. Gfarfunkel: Your Honor, Mr. Hager gave a very 
good outline of way the playgrounds are being operated in 
Savannah, and he stated that in general the playgrounds 
were for those up to 16 years in age, however, that they 
had no objection to those over 16 years in age playing 
when the others are not scheduled to play on the play­
grounds, he said that was because they didn’t want to mix 
them and he explained why he didn’t want to mix them, 
or why they didn’t want to mix them.

He further explained, Your Honor, that at that partic­
ular time of day is when the schools do use the playgrounds, 
and particularly this playground, with which he happens 
to be very familiar because it is only a block away from his 
office, in fact, part of it surrounds his office—that there 
are two parochial schools within walking distance of this 
playground, and that further away is another school, which 
sends buses all during the day to bring students to play 
on this playground, and that they don’t allow grown people



16

on the playgrounds during those periods—grown people, 
regardless of their color, they don’t want on the play­
grounds during that time. Of course, at this particular 
[fol. 24] moment the children were not there, but mo­
mentarily the children would come, they were going to 
come definitely, and a lot of them come after school, but 
all during school hours, Mr. Hager said that the children 
come all during school hours and are supervised by the 
teachers from the school.

Now, Your Honor, these defendants were there at a place 
and at the time where and when grownups should not have 
been on the playground. They are adopting the viewpoint 
that they went there solely for the purpose of playing 
basketball. The reason they went out there was to create 
a disturbance, and they say that ‘the reason you are ar­
resting us is not because of this, but because we are 
colored’.

They went out there not dressed to play basketball, they 
didn’t know the rules of the playground, and that is the 
reason why we introduced that evidence, we introduced 
that evidence to show ‘intent’ to create a disturbance of 
the peace. The police certainly shouldn’t have to wait until 
a disturbance is actually created and gets beyond control 
before they tell them that they will have to leave, and, 
certainly, to nip it in the bud before any difficulty or real 
trouble starts, that was the purpose of the Statute.

It is not the fact that they went out there and disturbed 
the peace by going out there, but it is the fact that they 
went out there for the sole purpose of disturbing the peace, 
and I think that all of the evidence shows that that is 
what this purpose was. That the police stepped in and 
told them to leave, but they continued to stay there after 
they told them to leave and continued to play, they con­
tinued to remain on the playground the police promptly 
arrested them.

Judge: Motion for directed verdict overruled.



17

[fol. 26]
I n th e  C it y  C ourt of S avann ah

S tate of Georgia

vs.
N ath an iel  W right

M otion for N ew  T rial , O rder to S h ow  C ause and 
D enial  of M otion

Verdict and judgment for the State at May term, 1961 
of City Court on 18th day of May 1961.

The defendant being dissatisfied with the verdict and 
judgment in said case, comes during said term of Court, 
before the adjournment thereof, and within 10 days from 
said trial, and moves the court for a new trial upon the 
following grounds to wit:

1. Because the verdict is contrary to evidence and with­
out evidence to support it.

2. Because the verdict is decidedly and strongly against 
the weight of evidence.

3. Because the verdict is contrary to law and the prin­
ciples of justice and equity.

4. Because the Statute upon which said verdict is based 
is so vague that the defendants were not put on notice as 
to what" criminal act they had allegedly committed, thus 
denying to defendants due process of law secured to them 
by the First and Fourteenth Amendments to the United 
States Constitution.

5. Because the Statute upon which said verdict is based 
is unconstitutional in that said Statute is unconscionably 
vague in that nowhere in said Statute does there appear a 
definition of disturbing the public peace or committing any 
unlawful act. The absence of definition of these terms in 
sufficient specificity denies due process of law guaranteed



18

by the Fourteenth Amendment to the United States Con­
stitution and the Constitution of the State of Georgia.

6. Because the Statute upon which verdict is based vest 
said Judge, Justice, Sheriff, Constable, Coroner or other 
peace officers the untramelled and arbitrary authority to 
predetermine the commission of the intent to commit an 
offense under said Statute. Defendants under said Statute 
is not apprized of what act or acts they are forbidden to 
commit, said determination being left solely to the discre- 
[fol. 27] tion of the said Peace Officer. Said Statute is 
therefore so vague, capricious, arbitrary and unreasonable 
as to violate the due process clause of the Fourteenth 
Amendment to the Constitution of the United States.

Whereupon he prays that these, his grounds for a new 
trial, be inquired of by the court, and that a new trial be 
granted him.

B. Clarence Mayfield, E. H. Gadsden, Atty’s for 
Movant.

Read and consider. It is ordered that the State of 
Georgia show cause before me, at 3 :00 o ’clock on the 23rd 
day of June, 1961, why the foregoing motion should not 
be granted.

It is further ordered that the State of Georgia be served 
with a copy of this motion and order; and that this order 
act as supersedeas until the further order of the court, and 
upon the defendant giving a good and sufficient bond in the 
amount of $80.00.

If for any reason said motion is not heard and deter­
mined at the time and place above fixed, it is ordered that 
the same shall be heard and determined at such time and 
place in vacation as counsel may agree upon and upon 
failure to agree, then at such time and place as the presid­
ing judge may fix on the application of either party, of 
which time and place and opposite party shall have at 
least five days’ notice.

I f for any reason this motion is not heard and determined 
before the beginning of the next term of this court, then 
the same shall stand on the docket until heard and deter­
mined at said term or thereafter.



19

It is further ordered that movant have, until hearing, 
whenever it may be, to prepare and present for approval a 
brief of the evidence in said case, and the presiding judge 
may enter his approval thereon at any time, either in term 
or vacation, and if the hearing of the motion shall be in 
vacation, and the brief of evidence has not been filed in 
the clerk’s office at any time within ten days after motion 
is heard and determined.
[fol. 28] It appearing that it is impossible to make out 
and complete a brief of the testimony on said case before 
adjournment of court; it is ordered by the court that said 
motion be heard and determined in vacation and that 
movant may amend said motion at any time before the 
final hearing.

This 23rd day of May, 1961.
Columbus E. Alexander, Judge, City Court of 

Savannah.

Georgia )
Chatham County )

S tate of Georgia

vs.
N ath an iel  W eight

Due and legal service of the within and foregoing Motion 
for New Trial is hereby acknowledged, copy received.

This 22nd day of May, 1961.
Andrew J. Ryan, Jr., Solicitor General for the East­

ern Judicial District of the State of Georgia.

Motion for New Trial, filed in office this 23rd day of 
May, 1961.

Jeff F. Dickey, Clerk, City Court of Savannah.



20

Order Continuing Hearing
The within Motion for New Trial is hereby continued to 
July 21st, 1961 at 3 :00 P.M. All rights of movant are 
hereby reserved.
In Open Court, this 23rd day of June, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.

[fol. 29]

Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled upon 
each and all of the grounds thereof.
In Open Court, this July 24th, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.

[fol. 30]
I n  th e  Cit y  Court op S avann ah

S tate oe G eorgia

vs.

Charles L. S mart

M otion for N ew  T rial , Order to S h o w  Cause and 
D en ia l  of M otion

Verdict and Judgment for the State at May Term, 1961, 
of City Court on 18th day of May, 1961.

The defendant being dissatisfied with the verdict and 
judgment in said case, comes during said term of Court, 
before the adjournment thereof, and within 10 days from 
said trial, and moves the court for a new trial upon the 
following grounds to wit:

1st. Because the verdict is contrary to evidence and 
without evidence to support it.



21

2nd. Because the verdict is decidedly and strongly against 
the weight of evidence.

3rd. Because the verdict is contrary to law and the 
principles of justice and equity.

4th. Because the Statute upon which said verdict is based 
is so vague that the defendants were not put on notice 
as to what criminal act they had allegedly committed, thus 
denying to defendants due process of law secured to them 
by the First and Fourteenth Amendments to the United 
States Constitution.

5th. Because the Statute upon which said verdict is based 
is unconstitutional in that said Statute is unconscionably 
vague in that nowhere in said Statute does there appear 
a definition of disturbing the public peace or committing 
any unlawful act. The absence of definition of these terms 
in sufficient specificity denies the process of law guaranteed 
by the Fourteenth Amendment to the United States Con­
stitution and the Constitution of the State of Georgia.

6th. Because the Statute upon which verdict is based 
vest said Judge, Justice, Sheriff, Constable, Coroner or 
other peace officers the untrammeled and arbitrary author­
ity to predetermine the commission of the intent to commit 
an offense under said Statute. Defendants under said Stat­
ute is not apprized of what act or acts they are forbidden 
to commit, said termination being left solely to the dis- 
ffol. 31] cretion of the said Peace Officer. Said Statute 
is therefore so vague, capricious, arbitrary and unreason­
able as to violate the due process clause of the Fourteenth 
Amendment to the Constitution of the United States.

Whereupon, he prays that these, his grounds for a new 
trial, be inquired of by the court, and that a new trial be 
granted him.

B. Clarence Mayfield, E. H. Gadsden, Attorneys for 
Movant.

Read and Considered. It is ordered that the State of 
Georgia show cause before me, at 3 o’clock on the 23rd day 
of June, 1961, why the foregoing motion should not be 
granted.



22

It is further ordered that the State of Georgia be served 
with a copy of this motion and order; and that this order 
act as a supersedeas until the further order of the court, 
and upon the defendant giving a good and sufficient bond 
in the amount of $80.00.
I f  for any reason said motion is not heard and determined 
at the time and place above fixed, it is ordered that the 
same shall be heard and determined at such time and place 
in vacation as counsel may agree upon, and upon a failure 
to agree, then at such time and place as the presiding 
judge may fix on the application of either party, of which 
time and place the opposite party shall have at least five 
days’ notice.
If for any reason this motion is not heard and determined 
before the beginning of the next term of this court, then 
the same shall stand on the docket until heard and deter­
mined at said term or thereafter.
It is further ordered that movant have, until hearing, 
whenever it may be, to prepare and present for approval 
a brief of the evidence in said case, and the presiding 
judge may enter his approval thereon at any time, either 
in term or vacation, and if the hearing on the motion shall 
be in vacation, and the brief of the evidence has not been 
filed in the clerk’s office at any time within ten days after 
motion is heard and determined.
[fol. 32] It appearing that it is impossible to make out and 
complete a brief of the testimony on said case before ad­
journment of court; it is ordered by the court that said 
motion be heard and determined in vacation and that 
movant may amend said motion at any time before the 
final hearing.
This 23rd day of May, 1961.

/ s /  Colum bus E. A lexander, Judge City Court of 
Savannah.



23

Acknowledgment of Service

State of Georgia )
County of Chatham )

S tate of Georgia 

vs.
Charles L. S mart

Due and Legal service of the within and foregoing Motion 
for New Trial is hereby acknowledged, copy received. This 
22nd day of May, 1961.

/ s /  Andrew J. Ryan, Jr., Solicitor General for the 
Eastern Judicial District of the State of Georgia.

Motion for New Trial as to Charles L. Smart filed in 
Clerk’s Office this May 23, 1961.

Jeff F. Dickey, Clerk City Court of Savannah.

[fol. 33]
Order Continuing Hearing on Motion for New Trial
The within Motion for New Trial is hereby continued to 

July 21, 1961, at 3 :00 P.M. All rights of movant are hereby 
reserved.

In Open Court this June 23, 1961.
Columbus E. Alexander, Judge, City Court of 

Savannah.

Order of Court Overruling Motion for New Trial
The within Motion for New Trial is hereby overruled 

upon each and all of the grounds thereof.
In Open Court this July 24, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.



24

[fol. 34]
I n  th e  C ity  Coubt of S avann ah

S tate of Georgia

vs.
R oscoe W h ite

M otion fob N ew  T r ia l , O rdeb to S h ow  Cause and 
D en ial  of M otion

Verdict and Judgment for the State at May Term, 1961, of 
City Court on 18th day of May, 1961.

The defendant being dissatisfied with the verdict and 
judgment in said case, comes during said term of Court, 
before the adjournment thereof, and within 10 days from 
said trial, and moves the court for a new trial upon the 
following grounds, towit:

1. Because the verdict is contrary to evidence and with­
out evidence to support it.

2. Because the verdict is decidedly and strongly against 
the weight of evidence.

3. Because the verdict is contrary to law and the princi­
ples of justice and equity.

4. Because the Statute upon which said verdict is based 
is so vague that the defendants were not put on notice as 
to what criminal act they had allegedly committed, thus 
denying to defendants due process of law secured to them 
by the First and Fourteenth Amendments to the United 
States Constitution.

5. Because the Statute upon which said verdict is based 
is unconstitutional in that said Statute is unconscionably 
vague in that nowhere in said Statute does there appear 
a definition of disturbing the public peace or committing 
any unlawful act. The absence of definition of these terms 
in sufficient specificity denies due process of law guaran­



25

teed by the Fourteenth Amendment to the United States 
Constitution and the Constitution of the State of Georgia.

6. Because the Statute upon which verdict is based vest 
said Judge, Justice, Sheriff, Constable, Coroner or other 
peace officers and untrammeled and arbitrary authority to 
predetermine the commission of the intent to commit an 
offense under said Statute. Defendants under said Statute 
is not apprized of what acts or act they are forbidden to 
commit, said determination being left solely to the dis­
cretion of the said Peace Officer. Said Statute is therefore 
[fol. 35] so vague, capricious, arbitrary and unreasonable 
as to violate the due process clause of the Fourteenth 
Amendment to the Constitution of the United States.

Whereupon, he prays that these, his grounds for a new 
trial, be inquired of by the court, and that a new trial be 
granted him.

B. Clarence Mayfield, E. H. Gadsen, Attorneys for 
Movant.

Bead and Considered. It is ordered that the State of 
Georgia show cause before me, at 3 o’clock on the 23rd day 
of June, 1961, why the foregoing motion should not be 
granted.
It is further ordered that the State of Georgia be served 
with a copy of this motion and order; and that this order 
act as a supersedeas until the further order of the court, 
and upon the defendant giving a good and sufficient bond 
in the amount of $80.00.
If for any reason said motion is not heard and determined 
at the time and place above fixed, it is ordered that the 
same shall be heard and determined at such time and place 
in vacation as counsel may agree upon, and upon failure 
to agree, then at such time and place as the presiding judge 
may fix on the application of either party, of which time 
and place the opposite party shall have at least five days’ 
notice.
If for any reason this motion is not heard and determined 
before the beginning of the next term of this court, then



26

the same shall stand on the docket until heard and deter­
mined at said term or thereafter.
It is further ordered that movant have, until hearing, when­
ever it may be, to prepare and present for approval a 
brief of the evidence in said case, and the presiding judge 
may enter his approval thereon at any time, either in term 
or vacation, and if the hearing of the motion shall be in 
vacation, and the brief of evidence has not been filed in 
the clerk’s office at any time within ten days after motion 
is heard and determined.
It appearing that it is impossible to make out and complete 
a brief of the testimony on said case before adjournment of 
court; it is ordered by the court that said motion be heard 
and determined in vacation and that movant may amend 
said motion at any time before the final hearing.
[fol. 36] This 23rd day of May, 1961.

/ s /  Columbus E. Alexander, Judge City Court of 
Savannah.

Acknowledgment of Service
State of Georgia )
County of Chatham )

S tate of G eorgia 

vs.
R oscoe W h ite

Due and legal service of the within and foregoing motion 
for new trial is hereby acknowledged, copy received. This 
22 day of May, 1961.

/ s /  A ndrew  J . R y a n , J r ., Solicitor General for the 
Eastern Judicial District of the State of Georgia,

Motion for new trial as to Roscoe White filed in Clerk’s 
Office this 23rd day of May, 1961.

Jeff F. Dickey, Clerk, City Court of Savannah



27

Order Continuing Hearing
The within Motion for New Trial is hereby continued to 
July 21, 1961, at 3 :00 P.M. All rights of movant are hereby 
reserved.
In Open Court, this 23rd day of June, 1961.

Columbus E. Alexander, Judge, City Court of Sa­
vannah.

Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled upon 
each and all of the grounds thereof.
In Open Court, this 24th day of July, 1961.

Columbus E. Alexander, Judge, City Court of Sa­
vannah.

[fol. 38]
In  th e  C ity  C ourt of S avan n ah

[fol. 37]

S tate of Georgia

v s .

J ames W . T homas

M otion for N ew  T rial , Order to S h o w  Cause and 
D enial  of M otion

Verdict and Judgment for the State at May Term, 1961, 
of City Court on 18th day of May, 1961.

The defendant being dissatisfied with the verdict and 
judgment in said case, comes during said term of Court, 
before the adjournment thereof, and within 10 days from 
said trial, and moves the court for a new trial upon the 
following grounds, towit:

1st. Because the verdict is contrary to evidence and 
without evidence to support it.



28

2nd. Because the verdict is decidedly and strongly 
against the weight of evidence.

3rd. Because the verdict is contrary to law and the 
principles of justice and equity.

4th. Because the Statute upon which said verdict is 
based is so vague that the defendants were not put on 
notice as to what criminal act they had allegedly committed, 
thus denying to defendants due process of law secured to 
them by the First and Fourteenth Amendments to the 
United States Constitution.

5th. Because the Statute upon which said verdict is 
based is unconstitutional in that said Statute is uncon­
scionably vague in that nowhere in said Statute does there 
appear a definition of disturbing the public peace or com­
mitting any unlawful act. The absence of definition of 
these terms in sufficient specificity denies due process of 
law guaranteed by the Fourteenth Amendment to the 
United States Constitution and the Constitution of the 
State of Georgia.

6th. Because the Statute upon which verdict is based 
vest said Judge, Justice, Sheriff, Constable, Coroner or 
other peace officers the untrammeled and arbitrary authority 
to predetermine the commission of the intent to commit 
an offense under said Statute. Defendants under said 
Statute is not apprized of what act or acts they are for­
bidden to commit, said determination being left solely to 
the discretion of the said Peace Officer. Said Statute is 
[fob 39] therefore so vague, capricious, arbitrary and un­
reasonable as to violate the due process clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

Whereupon, he prays that these, his grounds for a new 
trial, be inquired of by the Court, and that a new trial be 
granted him.

/ s /  B. Clarence M ayfield , E. H. Gadsden, Attor­
neys for Movant.



29

Bead and Considered. It is ordered that the State of 
Georgia show cause before me, at 3 o’clock on the 23rd day 
of June, 1961, why the foregoing motion should not be 
granted.
It is further ordered that the State of Georgia be served 
with a copy of this motion and order; and that this order 
act as a supersedeas until the further order of the court, 
and upon the defendant giving a good and sufficient bond 
in the amount of $80.00.
If for any reason said motion is not heard and determined 
at the time and place above fixed, it is ordered that the 
same shall be heard and determined at such time and place 
in vacation as counsel may agree upon, and upon failure to 
agree, then at such time and place as the presiding judge 
may fix on the application of either party, of which time 
and place the opposite party shall have at least five days’ 
notice.

If for any reason this motion is not heard and determined 
before the beginning of the next term of this court, then 
the same shall stand on the docket until heard and deter­
mined at said term or thereafter.

It is further ordered that movant have, until hearing, 
whenever it may be, to prepare and present for approval 
a brief of the evidence in said case, and the presiding 
judge may enter his approval thereon at any time, either 
in term or vacation, and if the hearing of the motion shall 
be in vacation, and the brief of evidence has not been filed 
in the Clerk’s office at any time within ten days after motion 
is heard and determined.
[fol. 40] It appearing that it is impossible to make out 
and complete a brief of the testimony on said case before 
adjournment of court; it is ordered by the court that said 
motion be heard and determined in vacation and that 
movant may amend said motion at any time before the 
final hearing.

This 23rd day of May, 1961.
/ s /  C olumbus E. A lexandeb, Judge, C.C.S.



30

State of Georgia ) 
County of Chatham )

S tate of Georgia 

vs.
J ames W . T hom as

Due and legal service of the within and foregoing motion 
for New Trial is hereby acknowledged, copy received.

This 22nd day of May, 1961.
/ s /  Andrew J. Ryan, Jr., Solicitor General for the 

Eastern Judicial District of the State of Georgia.

Chatham County Courthouse 
Room 310 
Savannah, Georgia

Motion for a New Trial as to James W. Thomas, filed 
in Clerk’s office this 23rd day of May, 1961.

Jeff F. Dickey, Clerk, City Court of Savannah.

[fol. 41]
Order Continuing Hearings

The within Motion for New Trial is hereby continued to 
July 21, 1961, at 3 :00 P.M. All rights of movant are hereby 
reserved.
In Open Court, this 23rd day of June, 1961.

Columbus E. Alexander, Judge, C.C.S.

Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled 
upon each and all of the grounds thereof.
In Open Court, this 24th day of July, 1961.

Columbus E. Alexander, Judge, City Court Savan­
nah.



31

I n th e  Cit y  C ourt of S avann ah
[fol. 42]

S tate of Georgia

vs.

B e n ja m in  Carter

M otion for N ew  T rial , Order to S h o w  Cause 
and D en ial  of M otion

Verdict and judgment for the State at May term, 1961 
of City Court on 18th day of May, 1961.

The Defendant being dissatisfied with the verdict and 
judgment in said case, comes during said term of Court, 
before the adjournment thereof, and within 10 days from 
said trial, and moves the court for a new trial upon the 
following grounds to w it:

1. Because the verdict is contrary to evidence and with­
out evidence to support it.

2. Because the verdict is decidedly and strongly against 
the weight of evidence.

3. Because the verdict is contrary to law and the prin­
ciples of justice and equity.

4. Because the Statute upon which said verdict is based 
is so vague that the defendants were not put on notice as 
to what criminal act they had allegedly committed, thus 
denying to defendants due process of law secured to them 
by the First and Fourteenth Amendments to the United 
States Constitution.

5. Because the Statute upon which said verdict is based 
is unconstitutional in that said Statute is unconscionably 
vague in that nowhere in said statute does there appear a 
definition of disturbing the public peace or committing any 
unlawful act. The absence of definition of these terms in 
sufficient specificity denies due process of law guaranteed



32

by the Fourteenth Amendment to the United States Con­
stitution and the Constitution of the State of Georgia.

6. Because the Statute upon which verdict is based vest 
said Judge, Justice, Sheriff, Constable, Coroner or other 
peace officers the untrammeled and arbitrary authority to 
predetermine the commission of the intent to commit an 
offense under said Statute. Defendants under said Statute 
is not apprized of what act or acts they are forbidden to 
commit, said determination being' left solely to the discre­
tion of the said Peace Officer. Said Statute is therefore 
so vague, capricious, arbitrary and unreasonable as to vio­
late the due process clause of the Fourteenth Amendment 
to the Constitution of the United States.
[fol. 43] Whereupon he prays that these, his grounds for 
a new trial, be inquired of by the court, and that a new 
trial be granted him.

B. Clarence Mayfield, E. H. Gadsden, Atty’s for 
Movant.

Bead and consider. It is ordered that the State of 
Georgia show cause before me, at 3 :00 o ’clock on the 23rd 
day of June, 1961, why the foregoing motion should not 
be granted.

It is further ordered that the State of Georgia be served 
with a copy of this motion and order; and that this order 
act as supersedeas until the further order of the court, and 
upon the defendant giving a good and sufficient bond in 
the amount of $80.00.

If for any reason said motion is not heard and determined 
at the time and place above fixed, it is ordered that the 
same shall be heard and determined at such time and place 
in vacation as counsel may agree upon, and upon failure 
to agree, then at such time and place as the presiding judge 
may fix on the application of either party, of which time 
and place the opposite party shall have at least five days 
notice.

If for any reason this motion is not heard and determined 
before the beginning of the next term of this court, then



33

the same shall stand on the docket until heard and de­
termined at said term or thereafter.

It is further ordered that movant have, until hearing, 
whenever it may be, to prepare and present for approval 
a brief of the evidence in said case, and the presiding 
judge may enter his approval thereon at any time, either 
in term or vacation, and if the hearing of the motion shall 
be in vacation, and the brief of evidence has not been filed 
in the clerk’s office at any time within ten days after motion 
is heard and determined.
[fol. 44] It appearing that it is impossible to make out 
and complete a brief of the testimony on said case before 
adjournment of court; it is ordered by the court that said 
motion be heard and determined in vacation and that mov­
ant may amend said motion at any time before the final 
hearing.

This 23rd day of May, 1961.
Columbus E. Alexander, Judge, City Court of 

Savannah.

State of Georgia ) 
County of Chatham )

S tate oe G eorgia

vs.

B e n ja m in  C arter

Due and legal service of the within and foregoing Motion 
for New Trial is hereby acknowledged, copy received.

This 22nd day of May, 1961.
Andrew J. Ryan, Jr., Solicitor General for the 

Eastern Judicial District of the State of Georgia.



34

Chatham County Courthouse 
Room 301 
Savannah, Georgia

Motion for New Trial, filed in Office this 23rd day of 
May, 1961.

Jeff F. Dickey, Clerk, City Court of Savannah.

[fol. 45]
Order Continuing Hearing

The within Motion for New Trial is hereby continued to 
July 21, 1961 at 3 :00 P.M. All rights of movant are hereby 
reserved.
In Open Court, this 23rd day of June, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.

Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled 
upon each and all of the grounds thereof.
In Open Court, this 24th day of July, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.

[fol. 46]
I n  th e  C it y  C ourt oe S avann ah

S tate o f  Georgia

v s .

J udson F ord

M otion eor N ew  T rial , Order to S h o w  C ause 
and D en ia l  oe M otion

Verdict and judgment for the State at May term, 1961 
of City Court on 18th day of May, 1961.



35

The defendant being dissatisfied with the verdict and 
judgment in said case, comes during said term of Court, 
before the adjournment thereof, and within 10 days from 
said trial, and moves the court for a new trial upon the 
following grounds to w it:

1. Because the verdict is contrary to evidence and with­
out evidence to support it.

2. Because the verdict is decidedly and strongly against 
the weight of evidence.

3. Because the verdict is contrary to law and the prin­
ciples of justice and equity.

4. Because the Statute upon which said verdict is based 
is so vague that the defendants were not put on notice as 
to what criminal act they had allegedly committed, thus 
denying to defendants due process of law secured to them 
by the First and Fourteenth Amendments to the United 
States Constitution.

5. Because the Statute upon which said verdict is based 
is unconstitutional in that said Statute is unconscionably 
vague in that nowhere in said Statute does there appear a 
definition of disturbing the public peace or committing 
any unlawful act. The absence of definition of these terms 
in sufficient specificity denies due process of law guaranteed 
by the Fourteenth Amendment to the United States Con­
stitution and the Constitution of the State of Georgia.

6. Because the Statute upon which verdict is based vest 
said Judge, Justice, Sheriff, Constable, Coroner or other 
peace officers the untrammeled and arbitrary authority to 
predetermine the commission of the intent to commit an 
offense under said Statute. Defendants under said Statute 
is not apprized of what act or acts they are forbidden to 
commit, said determination being left solely to the discre­
tion of the said Peace Officer. Said Statute is therefore so 
vague, capricious, arbitrary and unreasonable as to vio­
late the due process clause of the Fourteenth Amendment 
to the Constitution of the United States.



36

[fol. 47] Whereupon he prays that these, his grounds for 
a new trial, be inquired of by the court, and that a newr 
trial be granted him.

B. Clarence Mayfield, E. H. Gadsden, Atty’s for 
Movant.

Bead and consider. It is ordered that the State of 
Georgia show cause before me, at 3 :00 o’clock on the 23rd 
day of June, 1961, why the foregoing motion should not 
be granted.

It is further ordered that the State of Georgia be served 
with a copy of this motion and order; and that this order 
act as supersedeas until the further order of the court, 
and upon the defendant giving a good and sufficient bond 
in the amount of $80.00.

If for any reason said motion is not heard and determined 
at the time and place above fixed, it is ordered that the 
same shall be heard and determined at such time and place 
in vacation as counsel may agree upon, and upon failure 
to agree, then at such time and place as the presiding 
judge may fix on the application of either party, of which 
time and place the opposite party shall have at least five 
days notice.

I f for any reason this motion is not heard and determined 
before the beginning of the next term of this court, then 
the same shall stand on the docket until heard and de­
termined at said term or thereafter.

It is further ordered that movant have, until hearing, 
whenever it may be, to prepare and present for approval a 
brief of the evidence in said case, and the presiding judge 
may enter his approval thereon at any time, either in term 
or vacation, and if the hearing of the motion shall be in 
vacation, and the brief of evidence has not been filed in 
the clerk’s office at any time within ten days after motion 
is heard and determined.

It appearing that it is impossible to make out and com­
plete a brief of the testimony on said case before adjourn­



37

ment of court; it is ordered by the court that said motion 
be heard and determined in vacation and that movant may 
amend said motion at any time before the final hearing.
[fol. 48] This 23rd day of May, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.

Chatham County ) 
Georgia )

S tate of G eorgia

vs.
Junsorr F ord

Due and legal service of the within and foregoing Motion 
for New Trial is hereby acknowledged, copy received.

This 12th day of May, 1961.
Andrew Ryan, Jr., Solicitor General for the Eastern 

Judicial District of the State of Georgia.

Chatham County Courthouse 
Room 301 
Savannah, Georgia

Motion for New Trial, filed in Clerk’s office this 23rd 
day of May, 1961.

Jeff F. Dickey, Clerk, City Court of Savannah.

[fol. 49]
Order Continuing Hearing

The within Motion for New Trial is hereby continued to 
July 21st, 1961 at 3:00 P.M. All rights of movant are 
hereby reserved.
In Open Court, this 23rd day of June, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.



38

Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled 
upon each and all of the grounds thereof.
In Open Court, this July 24th, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.

[fol. 50]
I n  th e  C ity  Court of S avannah

Georgia )
Chatham County )

Criminal No. 21074

S tate of G eorgia, Plaintiff, 
vs.

N ath an iel  W rig h t , C harles L. S m art , R oscoe W h it e , 
J as. W . T h om as , B e n ja m in  C arter, J udson F ord, 
Defendants.

Violating Section 26-5301 Code of Georgia— 1933 
Brief of the Evidence

Tried in the City Court of Savannah, Chatham County, 
Georgia, on May 18th, 1961, before the Honorable Colum­
bus E. Alexander, Judge of said Court, with a jury.

A ppearan ces :

Sylvan A. Garfunkel, Esq., Asst. Solicitor General; Court 
House, Savannah, Ga., for the State.

E. A. Gadsden, Esq., B. C. Mayfield, Esq., Attorneys at 
law, Savannah, Georgia, for the Defendants.

And Thereupon G. H. T hom pson  duly sworn, testified:
My name is G. H. Thompson. I am a member of the 

Savannah Police Department, and I was a member of the



39

Savannah Police Department on or around January 23, 
1961, and I was on duty around two o’clock, here in 
Savannah, Chatham County, Georgia. A  white lady came up 
and told us about certain people being in Daffin Park and 
asked us certain questions about them—we were, at that 
time, at about the eastern end of Grayson Stadium, which 
is situated at the end of the Daffin Park area—-Daffin Park 
consists of an area of about 50 acres and it is a recreational 
park. This white lady came up and gave us certain in­
formation and asked us certain questions about it, and we 
made an investigation at a basket ball court, in Daffin Park, 
which was about 500 feet west of where we were at the 
time we had our conversation with this white lady—Officer 
[fol. 51] G. W. Hillis was with me at the time, and as a 
result of the conversation with this white lady we rode over 
to this Basket Ball Court to investigate, and when we 
arrived at this Basket Ball Court we found around seven 
colored boys playing basket ball there on the Basket Ball 
Court.

Q. Are they here today!
A. Yes sir.
Q. Are some of them here?
A. Yes sir.
Q. Where are they?
A. Well, this one with the red stripe tie, that’s one of 

them, and the other, sitting beside him on the right, and 
the one with the light shirt. That’s the only three I recog­
nize.

Brief continues:
As to their dress, they were pretty well dressed at that 

time; some of them had on dress shirts, some of them had 
on coats—not a dress coat, but a jacket. I didn’t notice 
what particular type shoes they had on, as far as I know 
they didn’t have ‘tennis shoes’ on. I am familiar with the 
type of shoes that people wear when they play basket ball, 
they didn’t have that type of shoes on as well as I remem­
ber.

I think that these defendants ranged in age from 23 to 
32.



40

There is a school nearby this Basket Ball Court, it is 
located at Washington Avenue and Bee Road, I mean, at 
Washington Avenue and Waters. There is another school 
on 44th Street—there are two schools nearby; I believe that 
they are both ‘grammar’ schools. I patrol that area and 
the children from these schools play there, they come there 
everyday I believe, I believe they come there every after­
noon when they get out of school, and I believe they come 
there during recess. The school, I believe, gets out about 
2 :30 in the afternoon, and this was around 2 :00 o’clock.

When I came Tip to these defendants I asked them to 
leave; I spoke to all of them as a group when I drove up 
there, and I asked them to leave twice, but they did not 
leave at that time. I gave them an opportunity to leave. 
One of the, I don’t know which one it was, came up and 
asked me who gave me orders to come out there and by 
what authority I came out there, and I told him that I didn’t 
need any orders to come out there, I believe the one that 
[fol. 52] asked me that is the third one there, sitting at the 
table in the Court Room here, the one there with the coat 
on, with the red button on it. The children from the schools, 
would have been out there shortly after that. The purpose 
of asking them to leave was to keep down trouble, which 
looked like to me might start—there were five or six cars 
driving around the park at the time, white people. They left 
only after they were put under arrest, they were put under 
arrest approximately 5 to 10 minutes after I told them to 
leave,— Officer Hillis is the one who put them under arrest 
—we called the police cruiser and it came and we put them 
in that. It seemed like to me that they were welcoming the 
arrests, because all of them piled into the car, Officer Hil­
lis’s car, at the time, and he had to stop them—Officer 
Hillis’ car did not carry any of them, the cruiser carried 
them in, they waited in the car until the cruiser came, all 
seven of them, it was seven of them. Officer Dickerson came 
up, he was riding as Street Sergeant at the time, and I 
reported to him what had happened.

Cross Examination of Officer Thompson by Mr. Gadsden:
This matter first came to my attention when this white 

lady had this conversation with us, the lady who told us



41

that colored people were playing in the Basket Ball Court 
down there at Baffin Park, and that is the reason I went 
there, because some colored people were playing in the 
park. I did not ask this white lady how old these people 
were. As soon as I found out these were colored people 
I immediately went there.

I have seen people play basket ball without uniforms on. 
I hadn’t paid too much attention to basketball, so I don’t 
know if a man 32 years old would play that game or not, 
but it is possible that a person who is 32 could be playing 
basket ball, and it is possible for a person of twenty-three 
to be playing basketball too. Under ordinary circumstances 
I would not arrest boys for playing basketball in a public 
park. I have never made previous arrests in Baffin Park 
because people played basketball there, I don’t have any 
knowledge myself if any certain age group is limited to 
any particular basketball Court, I don’t know the rules of 
the City Recreational Department.
[fol. 53] I arrested these people for playing basket ball in 
B affin Park. One reason was because they were negroes. 
I observed the conduct of these people, when they were on 
the basketball Court and they were doing nothing besides 
playing basket ball, they were just normally playing basket 
ball, and none of the children from the schools were there 
at that particular time.

I made these arrests around 2 :00 o’clock, and the schools 
let out around 2:30 o’clock, and it would have been at least 
30 minutes before any children would have been in this 
particular area.

This basketball Court is approximately 100 yards from 
Waters Avenue, and there is a north-south driveway, which 
goes right by the court, it circles the park—the driveway 
is about 15 yards out from the basket ball court, it runs on 
each side of it, I believe that it is Waring Drive that runs 
in from Waters Avenue and these driveways runs from 
Waring Drive. There were cars, riding around on these 
driveways, at least five or six cars, I wouldn t say that that 
was unusual traffic for that time of day.

When I asked them to leave is when that party asked me 
as to what authority I was asking them to leave. I believe



42

that they asked Officer Hillis for his badge number. I don’t 
think that it is unusual for one to inquire ‘why’ they are 
being arrested.

Redirect Examination by Mr. Garfunkel:
I believe that most of them had on dress pants, as far as 

I can remember. I have seen people playing basket ball, 
but I have never seen them come out dressed like that to 
play basketball. There have been colored children in Daffin 
Park, but I did not arrest those children, but I arrested 
these people because we were afraid of what was going to 
happen. Colored children have played in Daffin Park, and 
they have fished there.

Recross Examination by Mr. Gadsden:
I have observed colored children playing in Daffin Park, 

but not playing basketball, but I have observed them play­
ing and fishing, we had gotten previous calls that they 
were fishing in there and such, but not playing basketball. 
I have never made an arrest in Daffin Park.
[fol. 54] sometimes they do and sometimes they don’t. It is 
possible to play basketball in street clothes.

Redirect Examination by Mr. Garfunkel:
If I wanted to play basketball I would not go out there 

dressed up, not the way they were dressed.

Carl H ager duly sw orn , testified :

Direct Examination by Mr. Garfunkel:
My name is Carl Hager, I am Superintendent of the 

Recreational Department of the City of Savannah. As 
superintendent I am over all of the playgrounds in the 
City of Savannah, Chatham County, Georgia; that includes 
Daffin Park and all the other parks that have playgrounds. 
These playgrounds are mostly in neighborhood areas. 
There are neighborhood areas where colored families live, 
and neighborhood areas where white people live, we try to



43

establish them in that manner, and, then, there are certain 
areas where they are mixed to a certain extent. We have 
a playground in the Park Extension, and that is a mixed 
areas for white and colored—a white section and a colored 
section—it is mostly white, but there are several colored 
sections within several blocks, and they are much closer 
now than they use to be. Wells Park is what we call a 
border-area and that is a mixed area— one side is colored 
and one side is white. The Baffin Park area, mostly around 
that area is mostly white. It has occurred, from time to 
time, that colored children would play in the Baffin Park 
area and in the Park Extension area, but no action had 
been taken, because it is legal, it is allowed, and nobody 
has said anything about it. I am familiar with the Baffin 
Park playground area, in fact, the office of the Recreational 
Bepartment is in Baffin Park. That basket ball court is 
about a block from the office. I was advised that an arrest 
had been made, but they had all gone when I was told about 
it and I did know why the arrests had been made. The 
playground areas are basically for young children, say 
15 to 16 and under, along that age group, we give priority 
to the playground to the younger children over the grown­
ups, it made no difference as to whether they were white or 
colored. Anytime that we requested anyone to do something 
[fol. 55] and they refused we would ask the police to stop 
in, if we would ask them to leave and they did not we would 
ask the police to step in. We have had reports that colored 
children have played in the Park Extension, but they were 
never arrested or told to leave.

We have had grown people to come out to Baffin Park 
and play soft-ball; we have soft-ball diamonds and also 
younger people play on them, but we try to regulate the 
times for playing on the diamonds so that there will not be 
a conflict between the older people and the younger ones, 
and we issue permits in all cases where we think there will 
be conflict, we try to regulate them. We do not have the 
Tennis Courts regulated at the present time, they are now 
on first come first serve basis, but we plan to regulate these.



44

Cross Examination by Mr. Mayfield:
Q. Mr. Hager, I would like to ask you if your office made 

the request for the arrest on February 21st?
Objection to above by Mr. Garfunkel—see rulings of the 

Court, page 1, top of page.

Brief continues:
There are no signs posted in conspicuous places around 

the park defining what hours certain age groups were to 
use particular areas of the park, but we do have signs say­
ing that you do have to request permits from the office 
before using certain facilities, in other words, wTe designate 
the time ourselves as to what is to be carried out in those 
areas. I testified that if there was a conflict between the 
younger people and the older people using the park facili­
ties the preference would be for the younger people to use 
them, but we have no objections to older people using the 
facilities if there are no younger people present or if they 
are not scheduled to be used by the younger people.

There are about 7 parks in the City in negro areas and 
about 14 in white areas, and that changes during the season 
of a year according to the leadership, and I might explain 
that we could set apart the one that is under leadership; 
we have areas that have equipment, but do not have leaders 
and we do not consider those play grounds, it is only those 
where we have paid leadership, like tennis courts, and at 
Baffin Park and at Cann Park, where we pay an individual 
[fol. 56] to open and close the playgrounds and regulate the 
use of them.

The parks in white areas are located as follows:
‘Savannah Gardens’— Pensylvania near Jones; ‘Avon­

dale’— Texas Avenue and ‘Victory Heights’— east 42nd 
Street, on the other side of Skidawav; ‘Forrest Hills’—near 
DeRenne Ave. and Skidaway Road; ‘Hull’ ; 54th and At­
lantic Avenue; ‘Baffin Park’—Waters and Victory Drive; 
‘Garden Homes’—near Park Avenue and Cedar; ‘Live Oak’ 
— Park Avenue and Live Oak; Bavant’—Perry and Lincoln; 
‘Wells’—38th and Montgomery; ‘Forsyth’— Gaston and 
Bull; ‘Fred Wessels’—Fred Wessels Housing Units.



45

The parks in negro areas are located as follows:
‘Yamacraw Village’ ; ‘Carver Village area’—West Gwin­

nett Street; ‘Pearl Smith School’, which is also out in that 
area; ‘Cann’—Burroughs and W. 45th Street; ‘ Soldiers 
Field Area—-Paulsen and Joe ; ‘Robert Hitch Housing Area. 
Now that is six of them, I can’t think of the seventh at 
present.

It has been the custom to use the parks separately for the 
different races. I couldn’t say whether or not a permit 
would or would not be issued to a person of color if that 
person came to the office the Recreational Department and 
requested a permit to play on the courts, but I am of the 
opinion that it would have been, we have never refused one, 
the request never has been made.

Grownups use Daffin Park at certain times and under cer­
tain conditions, but to be frank with you I have never seen 
any using the basketball courts, however grownups could 
use them if there was no other need for them. To some 
extent particular attire is required for use on the basket­
ball court, because we feel some responsibility to the people, 
in reference to the proper attire worn—we don’t want them 
playing on there with baseball spikes on their shoes, or 
track shoes, or, in some cases, certain types of other shoes 
like shoes worn on a tennis court. We would expect them 
to wear the usual basketball attire— short trunks and what 
have you, if they were playing in one of our supervised 
regulated programs, but we would probably not expect it 
if they were playing in an unregulated and unsupervised 
program, and it would be consistent with our program to 
allow persons to wear ordinary clothing on the courts if 
[fol. 57] they so chose to do so, I don’t think that we would 
object to that. There is no minimum or maximum age limit 
for the use of basket ball courts, however, at the present 
time we have established a minimum—a maximum age limit 
of 16 years for any playground area. Programming is not so 
readily understood by lay people, by age grouping is taken 
into consideration in programming because we don’t want 
the older people competing with the younger people, and 
we don’t like to have them associating because we don’t 
think that a younger person should learn too much from the



46

older person or vice versa, we don’t think it conducive to 
good community relations, the building of character and 
the proper traits for younger people, and I think the school 
systems have followed somewhat the same procedure in 
segregating them in age groups, such as the younger school 
groups, the junior highs, and the high schools, and it is for 
the same purpose that we regulate our programs according 
to age groups and, sometimes, sexes also, and all of this is 
in accordance with, basically, a planned program. I could 
not answer the question as to whether everyone using the 
basketball courts come under the planned program, but 
at times they do use it when we are not putting a plan into 
action and when not using it, but I couldn’t say when or 
where, because we are not there and we don’t know. There 
is no regulation for playing on a Court when it is not in 
use and there is no one around.

Redirect Examination by Mr. Garfunkel:
On school days these courts and the playground area at 

Daffin Park are available for only certain age groups and 
they are only used at that time of day by the schools in that 
vicinity, it is, more or less, left available for them, that 
is the way we have our recreation setup.

Most of our playground areas are arranged according 
to the families living in that particular area, playgrounds 
where there are white families and playgrounds where there 
are colored families—most of them are arranged in that 
manner according to the areas. We do feel this, that play­
grounds are established within a distance of one mile of 
the people who are expected to use them, and normally 
when we find that when a playground is established with 
that in mind that people who live within one mile of it 
will use it, so if we put one in a predominantly negro 
neighborhood, then, predominantly negroes would use it. 
[fol. 58] and the same would be true for the whites, but, of 
course, we can’t always control that because we do not have 
the choice of locations where we would like to have them, 
and that is the reason why some could very easily become 
mixed areas, such as Park Extension, because that is within 
a mile of both white and colored, and that is the reason 
why both play in that area.



47

Recross Examination by Mr. Mayfield:
I don’t know whether or not we had a planned program 

arranged for the day that these arrests were made, I would 
have to check my records. We do not have parks in colored 
areas that are comparable in size or comparable in facilities 
to Daffin Park, but colored boys do fish in the pond at Daffin 
Park. The size of the facilities would be determined by 
the area. Cann Park is probably our most complete area 
that is in a colored neighborhood, and on that we have a 
tennis court—and we use that court for basketball, we have 
swings, slides, soft ball field, a small practice field, which 
is also used for football, and it also has a concrete spray 
pool, picnic table, and a few other odds and ends of equip­
ment, and it has a drinking fountain, and things of that 
nature, which would make it about as well equipped as any 
playground we have except for size.

I believe that the Cann Park basket ball court was com­
pleted on January 23, 1961.

Q. If your planned program did not have the 23rd of 
January, 1961, set aside for any particular activity would 
it have been permissible to use this basket ball court in 
Daffin Park in the absence of children.

A. I can’t very well answer that question because you 
have several questions in one. First, I would like to say that 
normally we would not schedule anything for that time 
of the day because of the schools using the totals area there 
and, second, I would not know whether we had something 
scheduled without referring to my records. Now if the 
schools were not there and were not using it and we had 
no program planned we certainly would not have been con­
cerned about other people using it. The schools use the 
area during school hours. The Parochial School uses it 
during recess and lunch periods and also for sport, as also 
the Lutheran School, and the public schools bring their 
students out there by bus and at various times during school 
[fol. 59] hours all day long, we never know when they are 
coming, and they use Cann Park the same way, I might add.

If it was compatible to our program we would grant a 
permit for the use of the basket ball court in Daffin Park to 
anyone regardless of race, creed or color, however, at that



48

time of day it would not be compatible to our program. If 
that basket ball court was not scheduled it would be com­
patible with our program for them to use it, and we would 
not mind them using it. If there was a permit issued there 
would be no objections as to race, creed or color.

C. C. D ickerson  du ly  sw orn, testified :

Direct Examination by Mr. Garfunkel:
On January 23rd of this year I was a Street Sergeant 

with the Savannah Police Department. I was a Street 
Sergeant around two o ’clock in the afternoon of that date 
when I received a call to go to the vicinity of Daffin Park. 
That was on a school day and school was in session on that 
day.

When I arrived there I found certain men in the cus­
tody of Officers Hillis and Thompson, these men are here 
today, they are all sitting at the table there with their two 
attorneys—there were seven originally, but there are only 
six of the defendants sitting at the table—Garvin King, 
age 19, hasn’t shown up today.

These defendants were under arrest when I arrived. 
They called for the Street Sergeant, but before I got there 
I heard them call for the wagon also. When I arrived I 
found these defendants dressed up nicely, I don’t think 
that all of them had suits on, but they had on nice pants 
and shoes—they were all dressed nice. I would say that 
they wasn’t dressed for playing basketball, if I were play­
ing basketball I would have on something more comfortable 
other than what they had on, all of the people were dressed 
nice though.

Cross Examination of Mr. Dickerson by Mr. Gadsden:
All of the activities were over when I arrived there.

[fol. 60] I have played basketball, but along about the 
time I played basketball out in the country I didn’t have 
on shoes, I was dressed in the custom and style of that time.

I have been a policeman for quite sometime. I have seen 
people playing on basketball courts in casual attire, but



49

I wouldn’t say that I have seen them playing basketball 
while being dressed as nicely as these people were on this 
particular day, but I ’d say that they sometimes play in 
their ordinary clothes, but I ’d say also that they usually 
play in dungarees and khaki and slacks, but these people 
were dressed a little better than that.

I knew a basketball coach, who was thirty. Professional 
players get on up above thirty years in age sometimes, and 
I guess there are some people above thirty who play basket­
ball.

G. W. H illis duly sworn, testified:

Direct Examination by Mr. Garfunkel:
My name is G. W. Hillis, I am a police officer of the 

Savannah Police Department, and I was a member of and 
on duty with the Savannah Police Department on or about 
the 23rd day of January of this year; I was on duty then 
and I had on my police uniform. I was on duty with Officer 
Thompson, he also had on his police uniform, I was on duty 
around two o’clock on the afternoon of the date in the 
vicinity of Daffin Park, here in Savannah, Chatham County, 
Georgia, at around that time I received some informa­
tion from a white lady as a result of that informa­
tion I went with Officer Thompson, in a police automobile, 
to the basketball court in Daffin Park, here in Savannah, 
Chatham County, Georgia. When I arrived there I saw the 
defendants, they were playing basketball. Officer Thomp­
son talked to them first, and then I talked to them. I asked 
them to leave, Officer Thompson had already asked them, 
I heard him ask them. They did not leave, and they did not 
stop playing until I told them they were under arrest. We 
called the wagon (cruiser). Officer Thompson told them 
that they would have to leave, he told them that at first, and 
they did have an opportunity to leave after he told them 
that. He asked them to leave, and then I asked them to 
leave after I saw they wasn’t going to stop playing, and 
[fol. 61] when I asked them to leave one of them made a 
sarcastic remark, saying: “ What did he say, I didn’t hear 
him” , he was trying to be sarcastic. When I told them to



50

leave there was one of them who was writing with a pencil 
and looking at our badge numbers. They all had an op­
portunity to leave before I arrested them, plenty of time to 
have left, but I told them to leave, they wouldn’t leave and 
I put them under arrest.

Cross Examination by Mr. Mayfield:
When I arrived the defendants were playing basketball. 

They were not necessarily creating any disorder, they were 
just ‘shooting at the goal’, that’s all they were doing, they 
wasn’t disturbing anything.

Redirect Examination by Mr. Garfunkel:
I am familiar with the fact that there are schools in that 

area, and that children would be out there in about 15 
minutes to play in that area.

Recross Examination by Mr. Mayfield:
The arrests were around two o ’clock. The schools dis­

charge their students around two-thirty, I think

State Rests. 12:05 P.M. Defense Rests.

Motion by Mr. Gadsden— see rulings of the Court, be­
ginning middle of page 1. (Jury excused)

* # # # #



51

I n  t h e  Cit y  Court of S avannah  

[Title omitted]

Order of C onsolidation— August 17, 1961
It appearing to the Court that the above stated cases 

were tried in the City Court of Savannah on May 18, 1961, 
and that all defendants therein were found guilty and 
sentenced by the Court to pay $100.00 or serve 5 months 
subject to the Board of Corrections of the State of Georgia.

It further appearing to the Court that Counsel for the 
Defendants filed a Motion for a New Trial for each and 
every defendant on the 23rd day of May, 1961, and that 
said Motion was set for hearing on June 23, 1961, the 
Honorable Columbus E. Alexander, Judge, then presiding, 
continued the hearing on said Motion until the 21st day 
of July, 1961, at which time said Motion and Brief of Evi­
dence was submitted to the Court without argument of 
Counsel. Said Motions for New Trial were considered by 
the Court and on the 24th day of July, 1961, the Honorable 
Columbus E. Alexander, Judge of said Court, entered an 
Order overruling said Motions for New Trial on each and 
every ground.

It further appearing to the Court that the Judgment and 
sentence in said cases are predicated upon similar circum­
stances and facts and involve the same defensive pleas and 
same question of law.

It is therefore ordered by the Court that said cases be 
consolidated and proceed to hearing before the Supreme 
Court of Georgia as if all said cases had been originally 
brought as such.

In Open Court, this 17th day of August, 1961.
Columbus E. Alexander, Judge, City Court of 

Savannah, Chatham County, Georgia.

Filed in office this 17th day of August, 1961. Beatrice M. 
Gill, Dept. Clerk, City Court, Savannah.

# # * # # #

[fol. 63]



I n t h e  S upbem e  C ourt op Georgia 

Case No. 21430

52

[fol. 67]

W righ t , et al., 

v.

T h e  S tate .

O pin io n—November 9, 1961
By the Court:

1. A mere recital in the brief of the defendants of the 
existence of an assignment of error, without argument or 
citation of authorities in its support, and without a state­
ment that it is insisted upon by counsel, is insufficient to 
save it from being treated as abandoned.

2. It is not error in a criminal case for the trial judge 
to refuse to direct a verdict of acquittal.

3. A demurrer which seeks to add facts not apparent on 
the face of the accusation must fail as a speaking demurrer.

4. A Code section utilizing terms with an established 
common-law meaning, and which is itself of common-law 
origin, is sufficiently definite to apprise a person of common 
intelligence with a standard which he may use in determin­
ing its command; this more than satisfies the requirements 
of due process.

5. An officer is not vested with arbitrary authority when 
he only makes an arrest, and it is left to judicial processes 
to ascertain if the described components of a criminal act 
are present.

Submitted October 9, 1961—Decided November 9, 1961— 
Rehearing denied November 21, 1961.

Unlawful assembly; constitutional question. Savannah 
City Court. Before Judge Alexander.



53

[fol. 68] The defendants, Nathaniel Wright, Charles L. 
Smart, Rosco(ef) White, James W. Thomas, Benjamin 
Carter, and Judson Ford, were brought to trial in the 
City Court of Savannah for violation of Code §26-5301 
which reads “ Unlawful assemblies.—Any two or more per­
sons who shall assemble for the purpose of disturbing the 
public peace or committing any unlawful act, and shall not 
disperse on being commanded to do so by a judge, justice, 
sheriff, constable, coroner, or other peace officer, shall be 
guilty of a misdemeanor.” The gravamen of the offense, 
as detailed in the accusation, was: “ In that the said de­
fendants did assemble at Baffin Park for the purpose of 
disturbing the public peace and refused to disburse (sic) 
on being commanded to do so by sheriff, constable, and 
peace officer, to wit: W. H. Thompson and G. W. Hillis.”

Before their arraignment and before pleading to the ac­
cusation, the defendants filed a general demurrer to the 
accusation, contending that for five enumerated reasons 
the Code section above cited is unconstitutional. The trial 
judge overruled the general demurrer, and evidence was 
then introduced by the State at the conclusion of which 
counsel for the defendants made a motion to acquit. After 
the argument of counsel, in the absence of the jury, the 
trial judge denied the motion to acquit. The jury was re­
called and, after argument of counsel and the charge of the 
court, returned a verdict of guilty. Whereupon the trial 
judge sentenced each defendant to pay a fine of $100 or to 
serve five months imprisonment, with the exception of the 
defendant Wright, who was sentenced to pay a fine of $125 
or to serve six months imprisonment.

The defendants filed a motion for new trial which was 
subsequently overruled on each and every ground. The 
[fol. 69] trial judge then issued an order permitting the 
defendants’ cases to be consolidated since all the cases were 
predicated upon identical circumstances and facts, and in­
volved the same defensive pleas and the same questions of 
law.

The defendants excepted and assign error on the over­
ruling of their general demurrer, the refusal by the trial 
judge to direct a verdict of acquittal, the denial of their



54

motion for a new trial, and on the judgment sentencing the 
defendants. Each of these assignments of error will be 
considered in order inverse from that in which it is above 
presented.

E. H. Gadsden, B. Clarence Mayfield, for plaintiffs in 
error. Andrew J. Ryan, Solicitor-General, Sylvan A. Gar- 
funkel, contra.

[fol. 70] Quillian, Justice. 1. In their bill of exceptions 
the defendants assign error on the judgment sentencing 
each defendant (fourth ground) and on the denial of their 
motion for a new trial (third ground). However, in their 
brief to this court they completely omitted the fourth 
ground and merely referred to the third ground by asking: 
“ Did the court commit error in overruling plaintiff’s in 
error motion for new trial?” There was no argument, cita­
tion of authority, or statement that such grounds were still 
relied upon. Therefore, the applicable rule, as laid down 
in Henderson v. Lott, 163 Ga. 326 (2) (136 SE 403), is: 
“Assignments of error not insisted upon by counsel in 
their briefs or otherwise will be treated by this court as 
abandoned. A  mere recital in briefs of the existence of 
an assignment of error, without argument or citation of 
authorities in its support, and without a statement that 
it is insisted upon by counsel, is insufficient to save it from 
being treated as abandoned.” Almand v. Pate, 143 Ga. 711 
(1) (85 SE 909); Head v. Lee, 203 Ga. 191, 202 (45 SE 2d 
666); The B-X Corp. v. Jeter, 210 Ga. 250 (4) (78 SE 2d 
790).

2. The second ground upon which the defendants rely 
is that the trial judge erred in failing to direct a verdict 
of acquittal for the defendants at the conclusion of the 
State’s evidence. It is not error in a criminal case to refuse 
to direct a verdict of not guilty. Winford v. State, 213 Ga. 
396, 397 (99 SE 2d 120); Williams v. State, 206 Ga. 107 
(10) (55 SE 2d 589); Coleman v. State, 211 Ga. 704 (2) 
(88 SE 2d 381); Baugh v. State, 211 Ga. 863 (1) (89 SE 2d 
504).



55

3. The first ground in the hill of exceptions is that the 
trial judge erred in overruling their general demurrers 
to the accusation. The defendants urge five contentions as 
[fol. 71] to why Code §26-5301, per se and as applied, vio­
lates rights secured to them by the Constitutions of the 
United States and of Georgia. Contentions (3) and (4) 
attack the Code section in question as unconstitutional as 
applied, since it was used to enforce racial discrimination, 
and as unconstitutional in that the arrest was pursuant to 
the policy, custom, and usage of the State of Georgia, which 
compels segregation of the races.

Neither of these two contentions can be ascertained from 
an examination of the accusation. A demurrer may prop­
erly attack only those defects which appear on the face of 
the petition, indictment, or, in this case, accusation. A 
demurrer which seeks to add facts not so apparent or to 
supply extrinsic matters must fail as a speaking demurrer. 
Jackson v. State, 64 Ga. 344; Arthur v. State, 146 Ga. 827 
(92 SE 637). See also Walters v. State, 90 Ga. App. 360, 
365 (83 SE 2d 48).

4. Contentions (1) and (2) attack the Code section, on 
its face, as violative of due process of law guaranteed^ by 
the Fourteenth Amendment to the United States Constitu­
tion and by the Georgia Constitution, arguing that said 
Code section is so vague that the defendants are not placed 
on notice as to what criminal act they have allegedly com­
mitted, rendering it impossible to answer the charge or to 
make legal defense, and unconscionably vague in that no­
where in the statute does there appear a definition of dis­
turbing the public peace or committing any unlawful act.

Since the defendants were charged only with “ disturbing 
the public peace,” the alleged vagueness of “ committing any 
unlawful act” need not be considered. Chaplinsky v. New 
Hampshire, 315 U.S. 568, 572 (62 S. Ct. 766, 86 LE 1031); 
Whittle v. Jones, 198 Ga. 538, 544 (32 SE 2d 94); Kryder 
[fol. 72] v. State, 212 Ga. 272, 274 (91 SE 2d 612). Neither 
does the defendants’ purported attack on the Code section 
under the Georgia Constitution raise any meritorious issue. 
In order to raise a question as to the constitutionality of a 
statute, the provision of the Constitution alleged to have



56

been violated must be clearly specified and designated, 
reference being made to the part, paragraph, or section. 
Clements v. Powell, 155 Ga. 278, 280 (8) (166 SE 624); 
Inlaw v. State, 168 Ga. 377 (1) (147 SE 881); Johns v. 
State, 180 Ga. 187, 188 (3) (178 SE 707); Manufacturers 
Trust Co. v. Wilby-Kincey Service Corp., 204 Ga. 273, 274 
(49 SE 2d 514); Krasner v. Rutledge, 204 Ga. 380, 382 
(49 SE 2d 864).

The United States Supreme Court has held that a statute 
is not unconscionably vague where its provisions employ 
words with a well-settled common-law meaning ( Waters- 
Pierce Oil Co. v. Texas, 212 U.S. 86, 108-111, 29 S. Ct. 
220, 53 LE 417); Nash v. United States, 229 U.S. 373, 376- 
378, 33 S. Ct. 780, 57 LE 1232; Hygrade Provision Co. v. 
Sherman, 266 U.S. 497, 502, 45 S. Ct. 141, 69 LE 402), 
approved in Connally v. General Const. Co., 269 U.S. 385, 
391 (46 S. Ct. 126, 70 LE 322); or is not couched in terms 
so vague that men of common intelligence must necessarily 
guess at its meaning and differ as to its application. Whit­
ney v. California, 274 U.S. 357, 368 (47 S. Ct. 641, 71 LE 
1095); Fox v. Washington, 236 U.S. 273, 276-278 (35 S. 
Ct. 383, 59 LE 573); Miller v. Strahl, 239 U.S. 426, 434 (36
S. Ct. 147, 60 LE 364); Omaechevarria v. Idaho, 246 U.S. 
343, 348 (38 S. Ct. 323, 62 LE 763); United States v. Alford, 
274 U.S. 264, 267 (47 S. Ct. 591, 71 LE 1040).

Here the term “ disturbing the public peace” is of generic 
common-law origin. Faulkner v. State, 166 Ga. 645, 665 
(144 SE 193); 11 C.J.S. 817, §1. “Disturbing the peace” 
or its synonym, “ breach of peace,” has long been inherently 
[fol. 73] encompassed in our law and is prevalent in the 
various jurisdictions. 11 C.J.S. 817 et seq., §2 et seq.; 8 
Am. Jur. 834 et seq., §3 et seq.

Further, the crime of unlawful assembly is itself of 
common-law origin, Reg. v. Pugh (1704), 87 Eng. Reprint 
900, Rex v. Birt (1831), 172 Eng. Reprint 919, 91 C.J.S. 
495, §1; 46 Am. Jur. 126, §2; is described in slightly vary­
ing forms in the vast majority of jurisdictions (Annot., 
71 ALR 2d 875); and in our own State was codified in the 
Penal Code of 1816 (Ga. L. 1816, p. 178; Lamar’s Comp. p. 
592).



57

“ The uncertainty in a statute which will amount to a 
denial of due process of law is not the difficulty of ascertain­
ing whether close cases fall within or without the prohibi­
tion of the statute, but whether the standard established 
by the statute is so uncertain that it cannot be determined 
with reasonable definiteness that any particular act is dis­
approved ; and a criminal statute is sufficiently definite if 
its terms furnish a test based on knowable criteria which 
men of common intelligence who come in contact with the 
statute may use with reasonable safety in determining its 
command.” 163 A.L.R. 1108, Annotating Minnesota v. 
Lanesboro Produce Co., 221 Minn. 246 (21 NW 2d 792) 
(citing Nash v. United States, supra, United States v. 
Wurzbaeh, 280 U.S. 396, 50 S. Ct. 167, 74 LE 508, and 
Collins v. Com. of Kentucky, 234 U.S. 634, 34 S. Ct. 924, 
58 LE 1510). The language of the Code section in ques­
tion is pronounced in terms so lucid and unambiguous that 
a person of common intelligence would discern its meaning 
and apprehend with what violation he was charged. Farrar 
v. State, 187 Ga. 401 (200 SE 803); Fowler v. State, 189 
Ga. 733 (8 SE 2d 77); Watson v. State, 192 Ga. 679 (16 
SE 2d 426).

5. The last contention (5) assigned, that the Code sec- 
[fol. 74] tion confers untrammeled and arbitrary authority 
upon the arresting officer, has no merit since we have de­
termined that the statute has a clear-cut standard to ap­
prise one of what constitutes a criminal act and thus to 
guide the conduct of such officer. There is no usurpation 
of judicial authority, nor the improper delegation of ju­
dicial discretion, since the officer involved only makes the 
arrest when, in his discretion, he believes a crime to have 
been perpetrated. The innocence or guilt, beyond a rea­
sonable doubt, of the accused must still be determined by 
judicial process.

This is a case of first impression in this State, and our 
research has failed to reveal any full-bench decisions from 
other jurisdictions on the exact question of the constitu­
tionality of a similar unlawful-assembly statute. Neverthe­
less, see Code v. Arkansas, 338 U.S. 345 (70 S. Ct. 172, 94 
LE 155). However, by applying the well-recognized prin-



58

ciples. and applicable tests above stated, we find no depriva­
tion of the defendants’ constitutional rights under the 
Fourteenth Amendment of the United States Constitution.

Judgment affirmed. All the Justices concur.

[fol. 75]
Iisr th e  S uprem e  C ourt oe G eorgia

J udgm ent— November 9, 1961
The Honorable Supreme Court met pursuant to adjourn­

ment. The following judgment was rendered:

N ath an iel  W righ t  et al., 

v.
T h e  S tate .

This case came before this court upon a writ of error 
from the City Court of Savannah; and, after argument 
had, it is considered and adjudged that the judgment of the 
court below be affirmed. All the Justices concur.

[fol. 76]
I n th e  S uprem e  C ourt of G eorgia 

[Title omitted]

M otion for R ehearing— Filed November 17, 1961
Now Come Nathaniel Wright, Charles L. Smart, Roscoe 

White, James W. Thomas, Benjamin Carter and Judson 
Ford, and within the time allowed by law, file this their 
Motion for Rehearing in the case stated, and for grounds 
thereof, say:

—1—
This Honorable Court seems to have completely disre­

garded the fact that the plaintiff’s-in-Error were “peace-



59

ably” playing basketball at tbe time immediately preceding 
the arrest.

—2—
The arresting Officers testified that the arrest was made 

solely because the Plaintiff’s-in-Error are Negroes.

— 3—
The United States Constitution clearly imposes a pro­

hibition upon a State from denying equal protection of the 
law to its Citizens.

—4—
An arrest based upon color without any supposed viola­

tion of the law constituted a deprivation of the Plaintiff’s- 
in-Error constitutional rights under the Fourteenth Amend­
ment of the United States Constitution.
[fol. 77]

—5—
The evidence shows beyond a reasonable doubt that the 

Plaintiffs-in-Error were not violating any law other than 
the fact that they were playing basketball in a municipally 
owned and operated “white” park, and there was no “breach 
of the peace” on the part of Plaintiffs-in-Error.

We respectfully submit that the Court, in its opinion 
in this case, has overlooked the essential fact that there 
was no disorder at any time on the part of the Plaintiffs- 
in-Error, either before or after the arrest.

WTherefore, your Petitioners pray that a rehearing be 
granted in this case, and the position of the Court reversed.

B. Clarence Mayfield, 4581/2 West Broad Street, 
Savannah, Georgia; E. H. Gadsden, 458^2 West 
Broad Street, Savannah, Georgia, Attorneys for 
Plaintiffs-in-Error.

*  *  *  * #



58

ciples and applicable tests above stated, we find no depriva­
tion of the defendants’ constitutional rights under the 
Fourteenth Amendment of the United States Constitution.

Judgment affirmed. All the Justices concur.

[fol. 75]
I n  th e  S u prem e  C ourt op G eorgia

J udgm ent— November 9, 1961
The Honorable Supreme Court met pursuant to adjourn­

ment. The following judgment was rendered:

N ath an iel  W right  et al., 

v.
T h e  S tate .

This case came before this court upon a writ of error 
from the City Court of Savannah; and, after argument 
had, it is considered and adjudged that the judgment of the 
court below be affirmed. All the Justices concur.

[fol. 76]
I n t h e  S uprem e  C ourt op G eorgia 

[Title omitted]

M otion por R ehearing— Filed November 17, 1961
Now Come Nathaniel Wright, Charles L. Smart, Roscoe 

White, James W. Thomas, Benjamin Carter and Judson 
Ford, and within the time allowed by law, .file this their 
Motion for Rehearing in the case stated, and for grounds 
thereof, say:

— 1—
This Honorable Court seems to have completely disre­

garded the fact that the plaintiff’s-in-Error were “peace-



59

ably” playing basketball at the time immediately preceding 
the arrest.

—2—
The arresting Officers testified that the arrest was made 

solely because the Plaintiff’s-in-Error are Negroes.

—3—
The United States Constitution clearly imposes a pro­

hibition upon a State from denying equal protection of the 
law to its Citizens.

—4—
An arrest based upon color without any supposed viola­

tion of the law constituted a deprivation of the Plaintiff’s- 
in-Error constitutional rights under the Fourteenth Amend­
ment of the United States Constitution.
[fol. 77]

—5—
The evidence shows beyond a reasonable doubt that the 

Plaintiffs-in-Error were not violating any law other than 
the fact that they were playing basketball in a municipally 
owned and operated “white” park, and there was no “ breach 
of the peace” on the part of Plaintiffs-in-Error.

We respectfully submit that the Court, in its opinion 
in this case, has overlooked the essential fact that there 
was no disorder at any time on the part of the Plaintiffs- 
in-Error, either before or after the arrest.

Wherefore, your Petitioners pray that a rehearing be 
granted in this case, and the position of the Court reversed.

B. Clarence Mayfield, 458y2 West Broad Street, 
Savannah, Georgia; E. H. Gadsden, 458y2 West 
Broad Street, Savannah, Georgia, Attorneys for 
Plaintiffs-in-Error.

#



[fol. 80]
I n t h e  S uprem e  Court of G eorgia 

Atlanta

O rder D en yin g  M otion for R ehearing— November 21, 1961
The Honorable Supreme Court met pursuant to adjourn­

ment. The following order was passed:

60

N ath an iel  W righ t  et al.,
v.

T h e  S tate .

Upon consideration of the motion for a rehearing filed in 
this case, it is ordered that it be hereby denied.

[fol. 81] Clerk’s Certificate (omitted in printing).

[fol. 82]
S uprem e  C ourt of t h e  U nited  S tates 

No. 729, October Term, 1961

N ath an iel  W rig h t , et ah, Petitioners, 
vs.

G eorgia.

O rder A llow in g  Certiorari— June 25, 1962
The petition herein for a writ of certiorari to the Su­

preme Court of the State of Georgia is granted, and the 
case is transferred to the summary calendar. The case is 
set for argument to follow No. 750.

And it is further ordered that the duly certified copy 
of the transcript of the proceedings below which accom­
panied the petition shall be treated as though filed in re­
sponse to such writ.

Mr. Justice Frankfurter took no part in the consideration 
or decision of this petition.



61

[fol. 83]
I n  th e  Cit y  C ourt o r  S avann ah

Georgia, )
Chatham County. )

Criminal No..................
Violation of Georgia Law 26-5301, Code of 1933, 

a Misdemeanor

S tate oe Georgia, Plaintiff,
vs.

N ath an iel  W rig h t , et al., Defendants.

Tried in the City Court of Savannah, Chatham County, 
Georgia, before the Honorable Columbus E. Alexander, 
Judge of said Court, with a Jury.

A ppearan ces :

Sylvan A. Garfunkel, Esq., Asst. Solicitor General, 
Court House, Savannah, Ga., For State.

E. A. Gadsden, Esq., B. C. Mayfield, Esq., Attorneys 
at Law, Savannah, Georgia, For Defendants.

Charge op th e  Court—Filed July 24, 1961 
Judge Alexander:

Gentlemen of the jury, this is the case of the State 
versus six defendants. I will read them to you, and you 
will have this with you in your Jury Boom when you retire: 
Nathaniel Wright, Charles L. Smart, Boscoe White, James 
W. Thomas, Andrew McArthur, and Judson Ford. You 
will notice one name, that I have circled, that is not being 
tried, you are not concerned with King not being tried 
today, so these six defendants are the defendants in this



62

case in which yon are interested during the course of your 
[fol. 84] deliberation.

These defendants are charged with the violation of 
Georgia Law 26-5301, Code of Georgia of 1933, which is 
a Misdemeanor.

To these accusations, or to this accusation against these 
six defendants, the defendants enter a plea of not guilty. 
That puts in issue the averments contained in the accusa­
tion, as well as the guilt or the innocence of the defendants 
being tried in this case.

I charge you, gentlemen, that in all criminal cases the 
defendant (or defendants), if they desire to do so, shall 
have the right to make to the Court and jury such state­
ment (or statements) of the case as they may deem proper 
in their defense, and such statement (or statements) shall 
have such force only as the jury may think right to give 
said statement (or statements), and they may believe the 
same in preference to the sworn testimony in the ease.

I charge you further, gentlemen, that the burden is upon 
the State to prove the guilt of these defendants beyond a 
reasonable doubt; they entered upon the trial of these cases 
with the presumption of innocence in their favor and this 
presumption follows them throughout the trial unless and 
until sufficient evidence has been introduced by the State 
to satisfy your minds beyond a reasonable doubt of the 
guilt of these defendants of the charges contained in the 
accusation.

A reasonable doubt is one that grows out of the testi­
mony or the lack of testimony—it is not an artificial or 
capricious doubt, but it should be real, honestly and fairly 
entertained by the jury after every reasonable effort to 
find out the truth of the case, and if at the end of your 
deliberation you have this character of doubt upon your 
minds you should give the defendants the benefit of it 
and acquit them, but, on the other hand, if you do not have 
such character of doubt upon your minds, and you believe 
that the State has made out the case as contained in the 
accusation under the evidence and under all the facts and 
circumstances of the case in its entirety beyond a reason­
able doubt it will be your duty to convict the defendants.



63

[fol. 85] The true question in criminal cases is not whether 
it be possible that the conclusion to which the testimony 
points may be false, but whether there be sufficient testi­
mony to satisfy your minds beyond a reasonable doubt that 
these defendants are guilty of the offenses charged in the 
accusations.

I further charge you, gentlemen of the jury, that you are 
the judges of both the law and the facts in cases of this 
nature; the law is given you in charge by the Court, the 
facts you get from the witnesses, who are sworn and who 
testify in the case, upon the statements of the defendants, 
from all the facts and circumstances of the case in its 
entirety, and during your deliberation you weigh the evi­
dence of the case in the light of the law applicable to the 
case, as given you in charge by the Court.

As stated to you, in the beginning of this charge, these 
defendants are charged with the violation of Georgia Law, 
Code Section 26-5301 of the Georgia Code of 1933. More 
specifically, these defendants: Benjamin Carter, James W. 
Thomas, Roscoe White, Charles L. Smart, Judson Ford and 
Nathaniel Wright, are charged, that in Chatham County, 
Georgia, with the offense of a misdemeanor, in that said 
defendants, in said County and State, on the 23rd day of 
January of this year, in that said defendants did assemble 
at Daffin Park for the purpose of disturbing the peace and 
they refused to disperse on being commanded to do so by 
Sheriff, Constable and Peace Officers, to-wit: W. H. Thomp­
son and G. W. Hillis, contrary to the laws of this State, 
the good order, peace and dignity thereof. I further charge 
you that this accusation is brought pursuant to Code Sec­
tion 26-5301 of the 1933 Criminal Code of Georgia, the 
heading of the Section under which this accusation is 
brought is “ Unlawful Assembly” , and it reads as follows:

“ Any two or more persons, who shall assemble for the 
purpose of disturbing the public peace, or committing 
any lawful act, and shall not disperse on being com- 
[fol. 86] manded to do so by a Judge, Justice, Sheriff, 
Constable, Coroner, or any other Peace Officer, shall be 
guilty of a misdemeanor.”



64

That is the law that these defendants are charged with 
violating, and further in connection with that I charge you 
that the term “ Other Peace Officer” , mentioned in this Sec­
tion, would include police officers of the Police Department 
of the City of Savannah, Georgia.

That, gentlemen, is the law of the case. You are the 
judges of the facts and there is nothing left for me to do 
now except instruct you as to the form of your verdict.

If you find the defendants guilty the form, of your ver­
dict, in substance, should be: “ We the jury find the de­
fendants guilty”— see that your verdict is dated and signed 
by your foreman.

If you find the defendants not guilty the form of your 
verdict, in substance, should be: “We the jury find" the 
defendants not guilty” , see that your verdict is signed and 
dated by your foreman.

Thank you gentlemen, now you may retire and deliberate 
upon your verdict.

End of Charge
Reporter’s Certificate to foregoing paper (omitted in 

printing).

[fol. 87] The above and foregoing 3 pages of typewritten 
material are approved as containing the correct charge as 
given the jury in the aforesaid case, and the same are 
hereby ordered filed as part of the record in said case.

This 24th day of July, 1961.
Columbus E. Alexander, Judge, City Court of 

Savannah.

[File endorsement omitted]



65

[fol. 88]
Violation of Georgia Law 26-5301, Code of 1933, 

» a Misdemeanor

S tate of G eorgia,

y s .

N ath an iel  W righ t , et al.

I, Jeff F. Dickey, Clerk of the City Court of Savannah, 
do hereby certify that the attached and foregoing, is a 
true, correct and complete transcript of the Charge of the 
Court rendered by Judge Columbus E. Alexander, Judge 
of the City Court of Savannah at the trial of this case.

In Witness Whereof, I have hereunto set my hand and 
affixed the seal of the City Court of Savannah this 23rd 
day of July, 1962.

Jeff F. Dickey, Clerk, City Court of Savannah, 
Georgia.

[ S e a l ]

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